Citation Nr: 1311338 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-42 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for emphysema. 2. Entitlement to service connection for asbestosis, claimed as scarring of the lungs. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for emphysema and asbestosis. The record reflects the Veteran perfected appeals concerning his claims for service connection for bilateral hearing loss and tinnitus. By rating action dated January 2013, the RO granted service connection for both disorders. This decision, accordingly, is limited to the issues set forth on the cover page. FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has emphysema that is etiologically related to military service. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has asbestosis, claimed as scarring of the lungs, that is etiologically related to military service. CONCLUSIONS OF LAW 1. Emphysema was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002). 2. Asbestosis, claimed as scarring of the lungs, was not incurred in or aggravated by active service. §§ 1110, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in October 2009 and December 2012 letters. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, service personnel records, private and VA medical records, and a medical article on asbestosis. A VA examination was conducted in December 2012, and an opinion regarding the etiology of the Veteran's respiratory disorder was obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it is based on an examination of the record and a review of the claims folder. The opinion considered the pertinent evidence of record, to include statements of the Veteran regarding his symptoms. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. 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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to each 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The personnel files show the Veteran was assigned to the USS Compass Island for most of his period of active duty. The record reflects the ship underwent renovations and that the Veteran was aboard the ship during a portion of this period. In a memorandum from the Naval Sea Systems Command Detachment dated February 1992, it was reported that asbestos products, such as pipe and duct coverings, clutches, gaskets and brake linings, were presumed to be aboard the USS Compass Island. The Veteran's claim for service connection for emphysema and asbestosis was received in October 2009. He reported these conditions were diagnosed in 1990 by Dr. Mest. The RO contacted the office of Dr. Mest and was advised if the Veteran had been seen in 1990, his chart was destroyed as records were only kept for 10 years. It was further indicated that it was not clear if the Veteran saw the doctor as the computer system did to go back that far. Private medical records have been associated with the claims folder. An October 1991 billing receipt indicates the Veteran had been seen by a private physician for respiratory system disease. A chest X-ray in December 2001 showed that chronic obstructive pulmonary disease changes were suspected. The examiner noted there was a possible nodular density and further investigation was recommended. A CT of the chest later that month revealed linear densities consistent with scars. It was indicated there was a pleural-based lesion in the right mid lung field that could be benign or malignant. A private physician wrote in December 2001 that the Veteran had been recently seen with bronchitis. The physician stated the Veteran had a history of exposure to asbestos in service and that he had worked for years in a cement factory. He noted the Veteran was on medication for chronic lung diagnosis. It was reported in February 2005 that the Veteran had an early history of chronic obstructive pulmonary disease. It was noted in April 2008 that he had a history of early emphysema. VA outpatient treatment records disclose the Veteran was seen in July 2010. The assessments were mild chronic obstructive pulmonary disease and asbestos exposure, by history. The Veteran was afforded a respiratory examination by the VA in January 2013. The examiner noted he reviewed the claims folder and VA medical records. It was indicated the Veteran claimed exposure to asbestos while he was stationed aboard the USS Compass Island, and the ship was undergoing renovations. The examiner noted the Veteran had chronic obstructive pulmonary disease that was not related to asbestos exposure, and that he did not have asbestos related lung disease. He also indicated that the apical scarring noted on chest X-ray might be related to asbestos exposure, but it was more likely that it was due to an old infection. Pulmonary function testing revealed the Veteran had chronic obstructive pulmonary disease which was not caused by or related to the claimed asbestos exposure. The diagnosis was asbestos exposure by history with biapical scarring of the lung on chest X-ray. The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. VA Manual at Subsection (h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). The record establishes the Veteran was serving aboard the USS Compass Island while renovations to the ship were being performed. Given that information from the Naval Sea Systems Command Detachment confirms that asbestos products were on the ship, for purposes of this decision, the Board concedes the Veteran was exposed to asbestos. The Board notes the service treatment records are negative for complaints or findings relating to any respiratory disorder, to include emphysema. When he submitted his claim for service connection in October 2009, the Veteran asserted both emphysema and asbestosis had been diagnosed in 1990. As noted above, when the medical provider from whom the Veteran claims to have sought treatment at that time was contacted, it could not be verified he had been a patient. The initial clinical indication of emphysema was in December 2001, approximately 32 years following the Veteran's discharge from service. Even if the Board were to assume the Veteran was found to have emphysema in 1990, as he has alleged, this was some 21 years after service. The evidence demonstrates that emphysema was first manifested many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) ("evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service. There is no indication in the record that the Veteran has emphysema that is associated with service. With respect to the claim for service connection for asbestosis, claimed as scarring of the lungs, the Board notes the Veteran has pulmonary nodules and apical scarring. The medical evidence of record fails to establish the Veteran has asbestosis. It is significant to point out, moreover, that following the January 2013 VA examination, the examiner, who acknowledged the Veteran reported to have been exposed to asbestos, concluded that the scarring is not related to exposure to asbestos. The Board also emphasizes that the Veteran has not been diagnosed with asbestosis. The examiner added that chronic obstructive pulmonary disease is not caused by or related to the Veteran's exposure to asbestos. The Board acknowledges the assertions of the Veteran that he has emphysema or asbestosis, claimed as scarring of the lungs, that is related to service. He is competent to report that he has experienced lung problems. As a lay person, however, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). There is no medical evidence linking any current lung disability to service. In the absence of any indication of emphysema for many years after service, or of medical evidence linking scarring of the lungs to asbestos exposure in service, the Board finds that the objective medical evidence of record outweighs any probative value of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As noted above, since the record fails to establish the Veteran has asbestosis, service connection for it may not be granted. The Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding the existence or onset of emphysema or of asbestosis, claimed as scarring of the lungs. The Board finds, accordingly, that the preponderance of the evidence is against the claim for service connection for emphysema or asbestosis. In reaching the above conclusions, 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 in the instant appeal. 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, 55-56 (1990). ORDER Service connection for emphysema or for asbestosis, claimed as scarring of the lungs, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs