Citation Nr: 1316851 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 04-20 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease (COPD) and asbestosis, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active duty service from December 1963 to October 1968. This matter initially came before the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2006, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO. A transcript of that hearing is of record. This claim was remanded by the Board for further development in June 2007. In September 2008 the Board denied the claim. The Veteran appealed the September 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in a July 2009 Order, the Court remanded the claim to the Board for readjudication in accordance with a Joint Motion for Remand. In February 2010, the Board remanded the claim for further development. In September 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in November 2011. In January 2012, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument within 60 days of the date of that letter. In March 2012, the Board received the Appellant's Brief in Response to the Medical Expert Opinion along with additional evidence and argument in support of his appeal. The Veteran indicated that he did not wish to waive initial consideration of this evidence, and requested that his appeal be remanded to the RO. Accordingly, the Board again remanded the claim in April 2012. Most recently, in January 2013, the Board again remanded the claim for further development, to include the procurement of updated VA treatment records, and outstanding private treatment records. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was exposed to asbestos during service. 2. The medical evidence reflects that the Veteran does not have a current asbestosis diagnosis. 3. A preponderance of the evidence is against a finding that a respiratory disorder, diagnosed as COPD, had its onset in service or is otherwise related to active duty, to include asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, diagnosed as COPD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), Pelegrini at 112. The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In this case VA's notice requirements were satisfied by a pre-adjudicatory letter issued in April 2003, as well as a post-adjudicatory letters dated in November 2003, March 2006, and July 2007 which apprised the Veteran of the criteria for establishing service connection and included notice of the type of evidence necessary to establish disability ratings or effective dates for the claimed disability under consideration. Thereafter, the Veteran's claim was readjduciated in April 2008 and April 2013 statements of the case (SSOC). Therefore, even though portions of the required notice were provided to the Veteran after the August 2003 rating decision, the Veteran is not shown to be prejudiced by the timing of this VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). Regarding VA's duty to assist, the Board notes that the Veteran's service treatment and post-service VA treatment records have been obtained and associated with the claims file. The Veteran also provided testimony at a Board hearing in September 2006. The Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). At the September 2006 hearing, the Veterans Law Judge and representative for the Veteran outlined the issues on appeal and engaged in a colloquy as to substantiation of the claim. There was a discussion with respect to the disability on appeal and the Veteran's contentions as to why it is related to his service. Overall, the hearing was legally sufficient. In addition, the Board concludes that there has been substantial compliance with the Board's February 2010, April 2012, and January 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to these Board remands, the Appeals Management Center (AMC) obtained current VA treatment records from the VAMC in Biloxi, dated from 2007 to the present. In addition, the AMC sent the Veteran letters dated in May 2010 and February 2013, requesting that he submit information concerning an award of state disability benefit and to identify any non-duplicative private treatment that he may have received for his claimed condition. The Veteran did not respond to either request. 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 Board also obtained an expert medical opinion through the VHA in accordance with the provisions of 38 C.F.R. § 20.901(a) (2012). In adjudicating the Veteran's claim in this case, the Board must determine whether it is "at least as likely as not" that the Veteran's respiratory disorder is related to asbestos exposure in service. The VHA examiner's opinion provides the necessary evidence to make such a determination. The VHA examiner reviewed the claims file, and provided an opinion with thorough clinical analysis and rationale. This opinion, as will be explained further below, provided the adequate evidence and analysis necessary for the Board to make a determination, without additional evidence or unnecessary delay. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the reasons set forth above, the Board finds that the duty to assist has been met, and the appeal is ready to be considered on the merits. 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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013 (overruling Savage v. Gover, 10 Vet. App. 488 (1997)). In this context, given that COPD and asbestosis are not specifically listed as chronic diseases in 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) do not apply to the Veteran's respiratory claim. Accordingly, a medical nexus of a relationship between the condition and service is required. Walker v. Shinseki, supra. The Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). For example, in Barr, the United States Court of Appeals for Veterans Claims (Court) held that varicose veins were a disability that was capable of lay observation for the purpose of establishing service connection. Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for a respiratory disorder, to include COPD and/or asbestosis, as due to asbestos exposure during service. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). 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. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). 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). Even if a Veteran is found not to be entitled to service connection as due to asbestos exposure, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In terms of his present disability, although the Veteran has continuously asserted that he has asbestosis, such disorder is not established by the current medical record; nor has it been shown at any time during the appeals period. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Exhaustive efforts by way of multiple Board remands, VA examinations, and a VHA opinion have been made in order determine whether the Veteran does, in fact, have an asbestosis diagnosis. In this regard, in September 1991, Dr. Mitchell found that contemporaneous chest x-rays were "compatible with pulmonary asbestosis." However, a May 2003 VA examiner found no radiological evidence of asbestosis. Likewise, a November 2004 VA examiner found that the Veteran's chest x-ray was normal and that there was no evidence of pulmonary fibrosis (the pertinent diagnosis was instead, COPD). A March 2010 chest x-ray was also normal. A July 2010 VA examiner similarly found that there was no evidence of any asbestos-related disease, and further noted that "compatible with " (as noted by Dr. Mitchell's report) is not a definitive diagnosis and that asbestosis is a chronic, progressive disease which does not wax and wane. And, finally, in November 2011, the VHA examiner determined that the Veteran did not currently have pulmonary asbestosis, but rather chronic COPD secondary to smoking. Based on the medical evidence outlined above, the Board finds that the Veteran does not have a current asbestosis diagnosis, nor has he been diagnosed with asbestosis at any point during the pendency of the claim. McLain, supra. To the extent that the Veteran claims otherwise, the Board notes that he is competent to report his current respiratory symptoms. However, asbestosis is not like the varicose veins at issue in Barr, 21 Vet. App. 303; such a disability requires expertise to diagnose. See Barr, supra. In this case, numerous medical professionals, based upon diagnostic/radiological studies of the Veteran's lungs and chest, have determined that the Veteran does not have a current asbestosis diagnosis. Based on the foregoing, the Board will now turn to whether the Veteran has any other currently manifested respiratory/lung disabilities for the purposes of establishing service connection. In this regard, multiple VA treatment records and examinations confirm that the Veteran has a diagnosis of COPD. As such, the evidence demonstrates the existence of a current respiratory disorder, meeting the first requirement for the establishment of service connection. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With respect to in-service incurrence, although service treatment records show notations of treatment for chest pains when coughing or taking a deep breath (with treatment of a cold); bronchitis; coughing spells productive of mucous; and a mild upper respiratory infection; a chest X-ray dated in October 1968, the date of the Veteran's separation from service, showed normal lung fields and the contemporaneous separation examination found that the lungs and chest were normal. As such, it appears that the mild in-service respiratory/lung symptoms related to bronchitis, a cold, and an upper respiratory infection, resolved prior to separation in 1968, and there is no evidence of COPD, or any chronic respiratory/lung disability in-service. The Board also briefly notes here that the Veteran expressly testified that he did not experience any breathing problems in-service, and that his problems manifested at a later dated. See Hearing Transcript, pp. 10-11. With respect to the evidence of treatment following service, the first post-service diagnosis of COPD is not shown until 1991, nearly 23 years after separation from service. See Treatment Record From Dr. Mitchell, September 1991. While not dispositive, this lengthy period without complaint or treatment can be considered as evidence that weighs against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Regardless of the above, the Veteran's main contention is that his pulmonary disorder, diagnosed as COPD, is the direct result of exposure to asbestos while serving as a boiler technician aboard Navy ships. See Hearing Testimony, generally. The Veteran's personnel records confirm that he served as a boiler technician on Navy ships, and the Adjudication Manual and Rewrite reflect that this occupation likely exposed the Veteran to asbestos. See e.g., Manual Rewrite, M21-MR, Part IV.ii.2.C.9.a (Dec. 13, 2005) (noting that common materials that may contain asbestos include steam pipes for boilers). As such, in-service exposure to asbestos is conceded in this case. Therefore, as there is evidence of a current pulmonary disability, namely, COPD, as well as evidence of in-service asbestos exposure, the Board must now determine whether COPD is related to the Veteran's in-service asbestos exposure or any other incident of service. Multiple VA opinions, as well as a VHA opinion, have been obtained to address the issue of nexus in this case. In May 2003, a VA examiner opined that the Veteran's COPD was likely secondary to chronic heavy cigarette smoking. In rendering his opinion, the examiner stated that he did not have access to the Veteran's medical records. He did, however, expressly consider the Veteran's reports of in-service asbestos exposure and post-service respiratory diagnoses, as well as his history of chronic smoking (40+ years). With respect to the November 2004 VA examiner, this examiner diagnosed COPD, but only addressed the etiology of asbestosis, a condition which the Veteran has been shown not to have. As such, the November 2004 VA examiner's opinion weighs neither in favor of, nor against the Veteran's claim. With respect to the July 2010 VA examination, the examiner reviewed the claims file and opined that the Veteran's COPD was not caused by, or related to service or asbestos exposure; he reasoned that the "medical evidence and expertise" did not support asbestos as a proximate cause of COPD, and that there was no evidence of COPD during service. However, as he failed to consider the Veteran's lay statements in rendering his opinion, this opinion is deemed inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007)(holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury, but relied on the service medical records to provide a negative opinion); see also VHA Opinion Request Letter. Finally, in September 2011, the Board requested a Veterans Health Administration (VHA) expert medical opinion to determine whether it was as least as likely as not that any of the Veteran's respiratory conditions were causally related to active duty service, to include exposure to asbestos therein. Specifically, the Board asked the expert to include consideration and discussion of Veteran's in-service complaints; his contentions regarding onset and history of his disability; the previous VA examiners' findings; and the September 1991 x-ray findings of interstitial pulmonary fibrosis compatible with asbestosis. After reviewing the Veteran's medical records, the November 2011 VHA examiner associated the Veteran's chronic COPD to his significant smoking history. He expressly stated that the COPD was not related to, or exacerbated by his "well-documented" asbestos exposure in-service. He provided the following rationale: (1) the Veteran has a very significant smoking history which is known to be the leading cause of COPD; (2) the Veteran's FEV-1 was 2.88 liters in 1991 and 2.08 liters in 2003, which indicates a rate of decline of 67cc/year; this rate of decline in the FEV-1 levels is not suggestive of an additional exacerbating factor; and (3) the Veteran's documented in-service respiratory illnesses would not have been sufficient to support a diagnosis of COPD. In this case, the Board accords the greatest evidentiary and probative value to the November 2011 VHA opinion. As noted above, the VHA opinion is based on a review of the Veteran's medical records and his lay statements, and the conclusion is supported by data and a rationale. See, e.g., Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, although asbestos exposure has been established by the record, the most probative medical evidence of record (i.e., the VHA opinion) does not establish the required nexus between any in-service exposure to asbestos and the present respiratory condition, namely COPD. The Federal Circuit has held that medical evidence is not always required when the determinative issue is medical nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, in this case, the Veteran is attempting to establish that CODP found multiple decades after service was caused by an in-service asbestos exposure. Such a determination goes well beyond merely reporting symptoms or observations, and in fact, as discussed below, the Veteran did not report the onset of respiratory problems for several decades after leaving service. As such, the Veteran is not merely relating a continuity of symptoms. To provide an opinion on such an etiology in this particular circumstance requires medical training well beyond the Veteran's experience. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, his opinion is insufficient to provide the requisite nexus between a respiratory condition and asbestos exposure. As discussed above, the evidence of record in this case shows that the Veteran did not have COPD or any chronic respiratory disorders in-service; the few complaints that he did have were largely related to cold symptoms, bronchitis, and a mild upper respiratory infection, and resolved prior to separation from service. There is also no evidence of a respiratory complaint until the early 1990s, some 20 years after discharge from service. In as much as there is no evidence of a respiratory disorder in-service or until many years thereafter, no current evidence of asbestosis, and no persuasive medical evidence suggesting an etiological relationship between his current COPD and service, the Board finds no basis for a favorable disposition of the Veteran's appeal. Accordingly, the appeal is denied. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim. See Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a respiratory disorder, including COPD and asbestosis, to include as due to asbestos exposure, is denied. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs