Citation Nr: 1340497 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-29 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for respiratory disability other than pleural and sub-pleural lung scarring, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active military service from February 1945 to August 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New Orleans, Louisiana. This case was previously before the Board in March 2013 and August 2013 when it was remanded for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. 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). FINDING OF FACT A respiratory disability other than pleural and sub-pleural lung scarring did not have onset during the Veteran's active service, was not caused by his active service, and was not caused or aggravated by a service-connected disability, to include pleural and sub-pleural lung scarring. CONCLUSION OF LAW Respiratory disability other than pleural and sub-pleural lung scarring was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date or the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in November 2010 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2012. Nothing more was required. VA has also complied with its duty to assist the Veteran in the development of his claim. All available service treatment records (STRs) and identified post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; and, the Board is also unaware of any such evidence. In addition, the appropriate VA medical opinion addressing the etiology of the Veteran's claimed respiratory disability has been obtained. Most recently, as directed by the August 2013 Board remand, a VA medical opinion was obtained in September 2013. The VA Disability Benefits Questionnaire (DBQ) report reflects that the examiner reviewed the Veteran's medical history and lay statements as contained in the VBMS file before rendering an opinion. The opinion included the rationale that was used to support the physician's conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311(2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No such disease or disability has been diagnosed/identified. As a result, service connection via the demonstration of continuity of symptomatology is not applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With respect to claims involving asbestos exposure, there is no specific statutory guidance, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases, which has been incorporated into the VA Adjudication Procedure Manual. See DVB CIRCULAR 21-88-8, Asbestos-Related Diseases (May 11, 1988); VA Adjudication Procedure Manual Rewrite M21-1MR, IV.ii.2.C.9 (VA Manual). The provisions stipulate that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. VA Manual, paragraph 9(d). An asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. VA Manual, paragraph 9(b) & (c). The most common disease is interstitial pulmonary fibrosis (asbestosis). Id. Asbestos fibers also may produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer and cancers of the gastrointestinal tract. Id. The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. VA Manual, paragraph 9(e). Rating specialists must develop any evidence of asbestos exposure before, during, and after service. A determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. However, the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos solely from shipboard (or any other type of) service. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In addition, service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation. Id. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47(Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297(1991). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary 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. The Board has thoroughly reviewed all the evidence in the Veteran's VBMS file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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 served in the Navy from February 1945 to August 1946, where he served on board the USS SIMMONS VICTORY as a hatchman and winchman. He has stated that he also assisted with firing the ship's guns. He claims entitlement to service connection for multiple respiratory disorders, which he claims are due to his exposure to asbestos while performing various duties on board the ship. He recalls having to place asbestos blankets over equipment. He says he also slept in a compartment that was lined with asbestos. STRs note no complaints related to breathing problems, and no respiratory disability was noted on the Veteran's July 1946 service separation examination. At an October 2011 VA respiratory examination the Veteran indicated that he had been exposed to asbestos during service while working with weaponry and also while welding. The Veteran noted that he had an increased shortness of breath for the prior 20 years. The examiner noted that the Veteran's medical history was significant for obesity, hypertension, hyperlipidemia, peripheral edema and gout. Physical examination revealed no abnormal breath sounds or crackles or wheezes. Chest X-ray studies revealed a linear band of scarring and/or chronic atelectasis, but no distinct infiltrate or effusion. The radiologist noted that these findings were unchanged from March 2006 and November 2010, the reports of which were attached. Pulmonary function tests revealed moderate obstructive impairment, but no restrictive impairment. The diagnosis was asbestosis. The examiner opined that the Veteran's pleural and subpleural scarring "may have been caused by exposure to asbestos." The examiner further opined that asbestos exposure "is not producing his dyspnea or changes on spirometry. Asbestos would produce a restrictive impairment, not an obstructive one." A March 2013 Board decision granted service connection for pleural and sub-pleural lung scarring. A Remand was ordered to address the Veteran's respiratory disorders other than the pleural and sub-pleural lung scarring, to include whether the respiratory disorder was proximately caused or chronically aggravated by his service connected pleural and sub-pleural lung scarring disability. A VA physician reviewed the Veteran's claims file in April 2013 and opined that the Veteran's respiratory disabilities (other than pleural and sub-pleural lung scarring) were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event or illness. The VA physician noted the Veteran's history of possible asbestos exposure and some linear scarring of the lung bases. He noted that there was no radiographic evidence of asbestosis, and no parenchymal, nodularity or diffuse lower zone scarring as would be expected in asbestosis. He further noted that the Veteran's pulmonary function did not show a restrictive impairment as would be seen in asbestosis. In summary, the effect of his asbestos exposure was deemed negligible and did not explain the Veteran's respiratory symptom complex. An addendum opinion was obtained in September 2013. A second review of the claims file performed. Consideration was also given to the Veteran's history asbestos exposure in service and complaints of increased shortness of breath. In this regard, the examiner noted that the Veteran has had a body mass index consistently greater than 30 and his respiratory symptoms have improved with weight loss. The VA physician opined that this would not be the case if the Veteran's lung disease was caused by pleural and sub-pleural scarring. He further determined that the Veteran's history of chronic respiratory tract infections was not caused by or associated with asbestos exposure. He also stated that chronic respiratory tract infections are less than 50 percent probability due to or aggravated by pleural and sub-pleural lung scarring. The VA physician observed that the Veteran has multiple metabolic and systemic conditions that are associated with dyspnea, including obesity, hyperlipidemia, gout, hypertension, osteoarthritis and a sleep disorder (cramps). He opined that these conditions are not caused by or associated with asbestos exposure and would all contribute to a subjective sense of dyspnea. He further determined that hypertension, hyperlipidemia, gout and leg cramps are less than 50 percent probability due to or aggravated by pleural and sub-pleural lung scarring. The VA physician noted that pulmonary function testing shows a vital capacity of 69-76% of predicted. The residual volume is elevated at 106% of predicted. He opined that the Veteran has reversible airways disease (asthma), which is best demonstrated in the improvement of his FEV1 from 66 to 74% of predicted with a net increase of 230 mL after administration of albuterol. He stated that asthma is an obstructive respiratory impairment, not a restrictive one as would be expected with asbestos related lung disease. He further opined that asthma is less than 50 percent probability due to pleural and sub-pleural lung scarring. In summary, the VA physician opined that the Veteran has multiple co-morbid conditions that would cause dyspnea other than the pleural and sub-pleural lung scarring disability. The evidence of record also includes VA treatment records dated from 2004 to 2013, which show complaints of and treatment for respiratory infections, asthma, and dyspnea. None of the records include an opinion relating these problems to the Veteran's active service or his service connected disabilities. As noted above, the Veteran's service personnel records show that he served in the Navy as hatchman and winchman. Assuming, given the nature of his military service, that the Veteran was exposed to at least some degree of asbestos in service, the evidence does not indicate he has an asbestos-related disease other than pleural and sub-pleural lung scarring (for which service connection has already been granted). Regarding the etiology of respiratory disability other than pleural and sub-pleural lung scarring, the medical evidence of record shows that such disability has been identified as chronic respiratory tract infections, dyspnea and asthma. However, as noted above, the Veteran's STRs are silent for any diagnosis of respiratory disorder. The first medical evidence of such disability is decades after service. While not necessarily outcome determine, such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330(Fed. Cir. 2000). The evidence of record does not include any medical opinion that the Veteran's chronic respiratory tract infections, dyspnea, or asthma is (or might be) related to his active service. To the contrary, the VA opinions are clearly against the Veteran's claim. The Board finds these opinions to be persuasive because it is based on a review of the Veteran's pertinent history. Notably, the VA physicians specified reasons for their conclusions, as noted above. No medical evidence to the contrary has been presented. Regarding the claim of secondary service connection, again, the September 2013 VA DBQ medical opinion (as noted above) is clearly against the Veteran's claim. The Board finds this opinion to be persuasive because it is based on a review of the Veteran's pertinent history. Notably, the VA physician specified reasons for his conclusions, as noted above. There is no competent medical opinion of record to the contrary. Consideration has been given to the Veteran's assertion that his respiratory disability other than pleural and sub-pleural lung scarring had its onset in service or is otherwise related to his active service or service-connected pleural and sub-pleural lung scarring. However, while lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a respiratory disorder falls 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). Respiratory disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that X-ray studies, pulmonary function tests and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Jandreau, supra, 1377(Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report respiratory symptoms, there is no indication that the Veteran is competent to etiologically link any reported in-service symptoms to respiratory disability diagnosed many years after his discharge, or to link his current diagnoses of chronic respiratory tract infections, dyspnea and asthma to a service-connected disability. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating respiratory disabilities. See King v. Shinseki, 700 F.3d 1339, 1345(Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. ORDER Service connection for respiratory disability other than pleural and sub-pleural lung scarring is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs