Citation Nr: 1341409 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-45 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a lung disorder, to include bronchial problems, chronic obstructive pulmonary disease (COPD), emphysema, and pneumonia, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to October 1963. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which declined to reopen a previously denied claim for a lung disorder. This appeal ensued. In April 2012, the Board reopened the claim and remanded it for additional development. The actions directed by the Board have been accomplished and the matter returned for appellate review. FINDING OF FACT The Veteran's lung disorders, diagnosed as emphysema, COPD, pneumonia and intermittent acute bronchitis, did not have their onset in active service and are not otherwise the result of a disease or injury incurred in active service, to include the reported exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a lung disorder, to include bronchial problems, COPD, emphysema, and pneumonia, claimed as a result of exposure to asbestos, have not been met. 38 U.S.C.A. §§ 1131, 1112 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Board finds that VA's duty to notify was satisfied by a letters sent to the Veteran in December 2008 and in April 2012. The claim was readjudicated in a November 2012 supplemental statement of the case (SSOC). Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service and VA treatment records have been associated with the claims folder and an appropriate VA examination was been conducted in conjunction with the claim. There was substantial compliance with the April 2012 remand as additional notice pertaining to the Veteran's assertions regarding exposure to asbestos was sent in an April 2012 letter and outstanding treatment records from the VA facility in St. Louis were obtained. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran asserts that his current lung disorders are related to in-service treatment for bronchial pneumonia as well as exposure to asbestos while serving as an assault boat coxswain onboard the U.S.S. Bexar and U.S.S. Paricutin. The Veteran contends that he has had problems with his lungs ever since his in-service respiratory problems. See VA Forms 21-4138 dated November 2008, February 2009, March 2009, May 2012 and December 2012; November 2009 VA Form 9. Service personnel records corroborate the Veteran's military occupation specialty and his service on board the U.S.S. Bexar and U.S.S. Paricutin. Service treatment records corroborate his assertion regarding in-service treatment for a respiratory problem. More specifically, they reveal that the Veteran reported to sick call in August 1960 with complaint of fever, cough, cold and sore throat. He was diagnosed with acute pharyngitis and acute bronchitis. The Veteran was admitted five days later with the same diagnoses. Examination of the chest revealed crackling and wheezing rales in the base of both lungs, more marked on the left. Laboratory studies obtained throughout the course of admission revealed initially peribronchial infiltration in the right lung base, which cleared to a negative status by the time of discharge. Other laboratory studies included a throat culture showing the usual Neisseria and alpha streptococcus. Complete blood count and urinalysis were negative. The diagnosis of acute bronchitis was revised to bronchopneumonia. See health records. At the time of the Veteran's October 1963 release from active duty examination, clinical evaluation of his lungs and chest was normal and a chest x-ray was negative. See report of medical examination. The post-service evidence of record reveals that although a May 1995 chest x-ray showed no active lung disease, the Veteran has received treatment for several lung disorders since then, to include bronchitis, COPD, emphysema and pneumonia. See e.g., VA treatment records dated November 1997, December 2002, April 2001, April 2009, August 2009, September 2009, February 2011 and January 2012. A December 1997 chest x-ray contained an impression of small right lower lobe infiltration; prominence of both hila. In pertinent part, a December 2001 chest x-ray contained an impression of emphysematous changes. A computed tomography (CT) scan of the chest conducted in November 2007 was normal. The Veteran underwent a VA respiratory examination in October 2009, at which time his claims folder was reviewed. The Veteran reported being admitted during basic training with fever and pneumonia, and subsequent service on board two ships, where his duties included cleaning compartments. He also indicated he was involved with refitting the U.S.S. Paricutin, which required him to remove asbestos insulation from pipes. The Veteran reported being treated for bronchitis at sea and the examiner noted that was not documented. The examiner noted that discharge physical reported normal lung examination and "essentially negative" chest radiograph. The Veteran reported his medical history, to include being a former smoker of about two packs a day for 35 years until quitting seven years prior. Following physical examination, to include pulmonary function testing, the Veteran was diagnosed with intermittent acute bronchitis with moderate obstruction and disabling dyspnea. It was the examiner's opinion that the Veteran's obstructive lung disease is most likely related to smoking related bronchitis. The examiner noted that his dyspnea was out of proportion to his spirometry but was consistent with his poor gas exchange documented on a home oxygen assessment. The gas exchange abnormalities were most likely related to obstructive sleep apnea and deconditioning was also noted. The examiner reported that there was no evidence of asbestos-related lung disease on any radiograph or CT scan. An August 2009 chest x-ray and a November 2007 CT scan were specifically reported. The examiner also noted that at the time of the Veteran's admission to the hospital for bronchopneumonia in 1960, the examiner described the presence of rhonchi, but no examiner after that described wheezing or rhonchi while he was in service. The examiner concluded that while the Veteran had pneumonia in service, there is no evidence that indicates that his current lung condition is related to that episode or illness. The conclusion was supported by normal lung examination at the time of discharge in 1963 and multiple normal chest radiographs while in service. Furthermore, his symptoms of dyspnea and bronchitis did not really begin until long after he left the service. The question to be resolved in this case is whether the Veteran's current lung disorder is etiologically related to active service, to include the reported exposure to asbestos. The October 2009 VA examiner reviewed the claims folder and pertinent test results of record dated and explained that that there was no evidence of asbestos-related lung disease on any radiograph or CT scan. The examiner also determined that the Veteran's smoking was the cause of his intermittent acute bronchitis with moderate obstruction and disabling dyspnea. This opinion is afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In the absence of competent and probative evidence establishing an etiological relationship between the Veteran's lung disorders, diagnosed as emphysema, COPD, pneumonia and intermittent acute bronchitis, and active service, to include the reported exposure to asbestos, service connection is not warranted and the claim must be denied. See 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for a lung disorder, to include emphysema, COPD, pneumonia and intermittent acute bronchitis, claimed as a result of exposure to asbestos, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs