Citation Nr: 1340653 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 03-14 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for a lung disorder, to include as due to claimed in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to June 1967. In addition, he had a period of active duty for training from March 1961 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In August 2006, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In March 2010 and August 2012, the Board remanded this case for additional development. In May 2013, the Board requested a Veterans Health Administration (VHA) opinion, and the VHA opinion was obtained in June 2013. The Veteran was advised of his right to provide additional evidence or argument in response to that opinion. In response to the June 2013 VHA opinion, the Veteran submitted additional evidence in September 2013, accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304 (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) 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. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran does not have an asbestos-related lung disorder. 2. A lung disorder, to include chronic obstructive pulmonary disorder (COPD), was first diagnosed many years after the Veteran's discharge from service, the most probative evidence indicates that the condition is not likely related to asbestos exposure in service, and there is no competent evidence that such disability is otherwise related to the Veteran's military service. CONCLUSION OF LAW The requirements for establishing service connection for a lung disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.300, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a March 2002 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. In March 2010 the Veteran was advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in January 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records and service personnel records, private treatment records, VA treatment records and examination reports, a VHA opinion, and hearing testimony. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included scheduling the Veteran for a VA examination, obtaining ongoing treatment records, and obtaining pre- and post-service histories of asbestos exposure. In response, ongoing VA treatment records were obtained and the RO/AMC scheduled the Veteran for an April 2010 VA examination. The Board subsequently requested a VHA opinion in May 2013 in order to supplement the April 2010 VA medical opinion and addendum. Additionally, recent evidence submitted by the Veteran documents the Veteran's asbestos exposure history, including pre-service exposure. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a Board hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Additionally, the Veteran volunteered information on his in-service incidents, his treatment history, and his symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has the Veteran identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran claims entitlement to service connection for a lung disorder, to include as due to asbestos exposure. He reports coming into contact with asbestos because the pipes and boilers in the barracks were covered with asbestos. He does not allege that he removed or worked with asbestos during service. He also clarified that he did not work as a pipe fitter after service. Service treatment records show that he was seen in June 1966 complaining of coughing up blood for 3 days. His chest was clear on examination and chest X-ray was normal. He was seen for an upper respiratory infection with productive cough in February 1967. The service treatment records are otherwise negative for respiratory complaints. His lungs and chest were normal on the June 1967 separation examination. After service, he was treated for bronchitis in September 1993. A VA examination in June 1997 showed normal chest expansion, clear lungs, and no dyspnea, wheezing, or cough. An April 1998 VA outpatient evaluation was negative for chronic obstructive pulmonary disease (COPD). Medical records reflect treatment for bacterial bronchitis in February 1995 and upper respiratory infections (URIs) in March 1995, April 1997, December 1997, and January 1998. COPD was suspected in April 2000 due to "a long history of smoking and history of asbestos exposure." The diagnosis was not confirmed as the Veteran was unable to complete pulmonary function testing. Additional medical records reflect treatment for URIs in June 2001, September 2001, October 2001, December 2001, July 2004, March 2006, May 2007, and April 2009. Calcifications in the right hilar region which were consistent with an old granulomatous disease were noted in February 2002. Moderate restrictive ventilatory defect by pulmonary function testing was noted in March 2002. A history of COPD was noted in May 2002 and August 2003. An April 2010 VA examination was conducted and a diagnosis of "chronic lung disorder" was given along with a favorable opinion. However, neither the diagnosis nor rationale for the opinion was deemed sufficient. In an October 2012 VA examination report, the examiner diagnosed COPD. The examiner determined it was not possible to establish a diagnosis of asbestosis since no pathology was found. As a result, it was concluded that the Veteran's lung disorder was less likely than not related to military service. The examiner explained that there were no service treatment records in the claims file showing a documented asbestos exposure or diagnosis/symptoms of a lung disorder. However, the examiner did not adequately address the in-service complaints. Therefore, in May 2013, the Board requested a Veterans Health Administration (VHA) opinion from a pulmonologist to supplement the October 2012 opinion. In June 2013, a VA pulmonologist reviewed the Veteran's entire claims file and opined that the Veteran does not suffer from an asbestos-related disease. He explained that the evidence showing minimal respiratory symptoms, normal lung auscultation, normal diffusion capacity in pulmonary function tests, and the lack of evidence of interstitial lung parenchymal changes on chest X-ray, did not support any asbestos-related disease. He also noted that the exposure concentration and duration in this case are unlikely to cause significant lung disease. Regarding the evidence of hilar calcifications on chest X-ray in February 2012, the pulmonologist determined that they are not likely related to asbestos exposure and more likely related to previous granulomatous infection. The pulmonologist also opined that the Veteran's diagnosed COPD is less likely related to asbestos exposure and more likely related to tobacco use and cigarette and pipe smoking. He noted that smoking is the most important risk factor for COPD, and evidence of asbestos causing COPD is much less clear, particularly whereas here, there is no clear evidence of asbestos-related lung disease. Finally, the pulmonologist determined that the Veteran's symptoms in service (including coughing up blood and URI) are less likely related to COPD or any other current lung disorder. He reasoned that evidence of normal chest X-rays is 1967 and 1995, as well as lack of persistent, recurrent, or similar symptoms during the time since service support a self-limited disease, such as an upper respiratory infection. Subsequent to the June 2013 opinion, the Veteran submitted additional evidence in support of his claim. Specifically, the Veteran submitted a February 1999 pulmonary evaluation pursuant to which the Veteran was diagnosed with pulmonary asbestosis. The report notes the Veteran's employment history with a shipyard from 1960 to 1962, prior to service, during which "he handled asbestos on a regular basis" and "worked near insulators and other tradesmen who...used asbestos on a regular basis." The evaluation also noted the Veteran's history of smoking cigarettes since 1971, previously at an average rate of three-quarters pack per day, but currently only five cigarettes per day. The signing physician based the diagnosis on September 1998 chest X-rays, which were also reviewed by a concurring physician, and pulmonary function testing. The physician diagnosed pulmonary asbestosis based on his occupational exposure. Significantly, the Veteran did not report any history of asbestos exposure associated with his military service at that time. However, in a December 2010 addendum, the signing physician noted that the Veteran's work history recounted in the February 1999 should include additional exposure as "a boiler worker, welder burner while in the United States Army Reserve from 1959 until 1963." Following a review of the record in this case, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for chronic lung disorder, to include COPD, to include as due to exposure to asbestos. Regardless of his claimed exposure, he is currently shown to have COPD, not asbestosis. Further, as noted above, a VA pulmonologist has opined that it is unlikely that the Veteran's COPD can be attributed to in-service exposure. Inasmuch as the pulmonologist reviewed the Veteran's claims file and provided a sound rationale for his conclusions, the Board finds the opinion highly probative. While a February 1999 report shows a diagnosis of pulmonary asbestosis that was based on September 1998 chest X-rays interpreted by a Dr. Ray A. Harron, the Board finds that such opinion is entitled to little probative weight. In this regard, such opinion was apparently provided in response to the Veteran's litigation against his former employer, as the medical records were mailed to an attorney. The Board finds it significant that no subsequent X-rays confirmed those physicians' conclusions. Further, federal case law reflects that Dr. Harron has worked exclusively for plaintiffs' lawyers, reading X-rays and diagnosing asbestosis and silicosis for use in litigation since 1995. See In re Silica Products Liability Litigation, 398 F.Supp.2d 563, 604 (S.D.Tex., 2005). During the litigation in In Re Silica it was discovered that, when it came to isolating the doctors who diagnosed the plaintiffs with silicosis, of the 8000 doctors listed, the 9000 plaintiffs were diagnosed with silicosis by only 12 doctors, one of whom was Dr. Harron. It was noted that in virtually every case, these doctors were not the plaintiffs' treating physicians, did not work in the same city or even state as the plaintiffs, and did not otherwise have any obvious connection to the plaintiffs. Rather, these doctors instead were affiliated with a handful of law firms and mobile X-ray screening companies. Id. at 580. It was further noted that "in every one of the approximately 6350 reports purportedly issued by Dr. Harron, Dr. Harron failed to write, read, or personally sign the actual report." Id. at 605. It was also noted that, despite the asbestosis and silicosis having very different radiographic findings, Dr. Harron diagnosed plaintiffs with asbestosis for one litigation, then later diagnosed the same people based on those same X-rays as having silicosis for a different litigation. Id. at 608. Of further note, in Harron v. Daines, 2010 WL 2303200 (N.Y.A.D. 3 Dept., 2010) it was revealed that the Bureau of Professional Medical Conduct initiated a referral proceeding against Dr. Harron based upon disciplinary action for making misrepresentations in diagnostic reports produced for plaintiffs in connection with his work as a medical expert in silica/silicosis tort litigation. The above cases raise a serious question as to the credibility of the findings on the 1998 X-ray, especially when considered in light of the more recent X-rays showing no asbestos-related findings. As the 1999 opinion was rendered based upon the 1998 X-ray reviewed by Dr. Harron, the credibility of that opinion is likewise suspect. The Board also points out that the 1999 opinion contained no meaningful analysis pertaining to the role of the Veteran's smoking. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Given the foregoing, the Board finds that the opinion has little probative value. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). It is far outweighed by the opinion from the VA pulmonologist. In any event, the Veteran filed his claim in February 2002. None of the medical evidence of record dating from 2002 to the present reflects a diagnosis of asbestosis. The only medical evidence in the record showing a diagnosis of asbestos-related lung disease was rendered years before the current claim was filed and was rendered in response to private litigation. The Veteran gave a history to the physician in February 1999 of working for a steel company at a shipyard prior to active service as a laborer and painter, handling asbestos on a regular basis. The diagnosis of asbestosis as provided on the private treatment report linked the disorder to occupational exposure, with no mention of any exposure to asbestos during military service. It was not until December 2010 that an addendum was offered discussing in-service exposure to asbestos as a welder or worker in boiler-room. However, the dates for exposure on that addendum appear to be inaccurate. While the addendum lists exposure as a welder and boiler worker while in the Army Reserves from 1959 to 1963, service personnel records show that the Veteran served as a welder for four months during active duty for training from March 1961 to September 1961, and during active duty from February 1965 to July 1966. They do not show service as a welder or boiler worker between 1962 and 1964. Regardless, X-rays taken in August 2012 are negative for evidence of an asbestos-related lung disorder. The X-ray was conducted based on the reported history of asbestos exposure, but asbestosis or related pleural findings were not shown. To the extent that the Veteran is offering his own opinion that his lung disability is related to active service, the Board notes that resolution of questions pertaining to the diagnosis and etiology of lung disability requires medical expertise. Inasmuch as the Veteran is not shown to have the specialized training necessary to render a competent opinion on the matter, his opinions in that regard are not competent medical evidence. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the medical opinion by the VA pulmonologist to be of significantly greater value than the Veteran's lay contentions concerning the diagnosis and etiology of his current lung disorder. The greater weight of the competent, credible, and probative evidence establishes that the Veteran's COPD is not in any way related to active service, to include claimed in-service exposure to asbestos. Moreover, to the extent the Veteran contends that his current lung disorder is related to in-service tobacco use, current law prohibits service connection for a disability on that basis. 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a) (2013). For the reasons set forth above, the Board finds that service connection is not warranted for a chronic lung disability and the appeal is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a lung disorder, to include COPD, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs