Citation Nr: 1322056 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-44 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a lung disability, claimed as residual to exposure to asbestos or herbicides during service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to April 1971, including service in the Republic of Vietnam. His discharge from service is characterized as Under Honorable Conditions. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Custody of the file was subsequently transferred to the RO in Jackson, Mississippi. In January 2012 the Board remanded the case to the RO for further development, which has been accomplished. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides during service, but does not have a lung disorder that is presumptively associated with such exposure. 2. The Veteran is not shown to have been exposed to asbestos during service. 3. The Veteran's lung disorder, diagnosed as chronic obstructive pulmonary disease, became manifest many years after discharge from service and is not etiologically related to service. CONCLUSION OF LAW The requirements for establishing service connection for a lung disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Veteran was advised of the elements required to show entitlement to the benefits claimed, to include the effective-date and disability-rating elements of a claim for service connection in an October 2007 letter issued prior to the rating decision on appeal. In any event, the Veteran has not alleged any prejudice due to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record also reflects that service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained, to include disability records from the Social Security Administration (SSA). With asbestos-related claims, the Board must determine whether the development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120, 124- 125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the claim- development procedures). The procedures regarding development of asbestos-related claims are specified in VA Adjudication Procedure Manual, M21-1 Manual Rewrite, subpart ii (compensation), 1.H.29 (Developing Claims for Service Connection for Asbestos-Related Diseases). This requirement was satisfied by letters to the Veteran in October 2007 and December 2008, in which the RO informed the Veteran of the evidence required to demonstrate an asbestos-related disease and asked him to identify the circumstances of any asbestos exposure during service. The Veteran has been afforded VA examinations in regard to the disability for which he claims service connection, and medical opinion in regard to such claimed disability is of record. In that regard, the Board previously remanded the case for additional medical examination, which was performed in May 2012. The Board has reviewed the examination report and the opinion contained therein, and finds the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim on appeal. Applicable Legal Principles Service connection may be granted for 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. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A veteran who, during active military, naval or air service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish the veteran was not exposed to an herbicide agent during such service. The last date on which the veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Secretary of Veterans Affairs has determined there is no presumptive positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). The Agent Orange Act of 1991 requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C.A. § 1116 (b) and (c). In September 2011 the NAS issued Veterans and Agent Orange: Update 2010 (Update 2010). That document specifically stated that presumption of service connection based on herbicide exposure is not warranted for respiratory disorders including wheeze or asthma, chronic obstructive pulmonary disease or farmer's lung. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims; see VA Department of Veterans Benefits (DVB) Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, subpart ii, 2.C.9 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.2.ii.C.9."). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure; see VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials and thermal insulation. M21-1MR, IV.ii.2.C.9.a. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, IV.ii.2.C.9.d. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, IV.ii.2.C.9.e. Some of the major occupations involving exposure to asbestos include mining; milling; working 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 such products as roofing and flooring materials, asbestos and cement sheet and pipe products and military equipment. Exposure to any simple kind of asbestos is unusual except in mines and mills where the raw materials are produced. M21-1MR, IV.ii.2.C.9.f. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1MR, IV.ii.2.C.9.g. When deciding a claim for service connection for a disability resulting from an exposure to asbestos, VA must determine whether service records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1MR, IV.ii.2.C.9.h. The Court has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.9.f-g cited above) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141, 145 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). 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 appellant or obtained on her 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). 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 (West 2002); 38 C.F.R. § 3.102 (2009); 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. Evidence and Analysis Service treatment records (STRs) show no indication of lung complaints in service. A Report of Medical Examination dated in February 1971 shows clinical evaluation of the lungs and chest as "normal." In the corresponding self-reported Report of Medical History the Veteran denied history of chronic cough, shortness of breath or chest pain or pressure. Service personnel records show the Veteran served in the Republic of Vietnam from February 1968 to July 1968 (temporary duty, or TDY) with the principal duty of supply man. He served in Vietnam during the period May 1969 to April 1970 as a supply parts specialist. While in Vietnam he was assigned to the 241st Transportation Company (Depot), again with the principal duty of supply parts specialist. In sum, the Veteran served various units in the United States, Germany and Vietnam in military occupational specialty (MOS) 76 (supply specialist) with assigned principal duties of general warehouseman, supply man, supply clerk, armor unit supply specialist and repair parts specialist. Following return from Vietnam he was on three occasions dropped from the rolls (DFR) as a deserter, but on each occasion he returned to duty as a "duty soldier." In March 1971 the Veteran was pending trial by court martial but in consideration of his otherwise good service he was separated from service with a general discharge under honorable conditions. Service personnel records do not show the Veteran as having served in a shipyard or as having performed any other activities in service that are noted in M21-1MR as being associated with high risk of asbestos exposure VA outpatient treatment records from October 1999 to June 2007 are silent regarding any history of lung disorder. The Veteran was noted in October 1999 to be employed as a dump truck driver. The Veteran was urged to stop smoking on several occasions, but no significant lung abnormalities were noted in the treatment records (on one occasion in July 2003 the Veteran had an unproductive cough, but no clinical impression was entered). The Veteran presented to the emergency room of Summa Health Services in June 2007 complaining of chest pain and shortness of breath. He admitted a family of heart disease and being a smoker. Chest X-ray was normal, and the Veteran was admitted for observation and further tests. He thereupon had a computed tomography (CT)/angiogram of the chest that in relevant part showed nonspecific pleural thickening on the left and bibasilar atelectasis. During treatment at Summa Health Services the Veteran reported that he handled asphalt at work and that he had been exposed to asbestos for several weeks. There is no indication that the Veteran's treatment at Summa Health Services resulted in a diagnosis for his current respiratory complaints. Thereafter, the Veteran presented to the VA primary care clinic (PCC) in June 2007 reporting he had recently been evaluated in a non-VA hospital for chest pain and had been identified with asbestos around the lungs and kidneys. He produced the Summa CT/angiogram report cited above. Clinical examination showed the lungs to be clear to auscultation (CTA) and no current respiratory abnormality was noted. In August 2007 the Veteran filed the present claim for service connection, characterized as a claim for pleural thickening and atelectasis of the left lung due to exposure to herbicides and asbestos in service. He repeated this theory of exposure in letters submitted in a letter submitted in June 2008 and November 2009. The Veteran submitted a Statement in Support of Claim in November 2007 asserting that he may have been exposed to asbestos in Vietnam hauling trash to a dump or working on the base perimeter among flares and barbed wire during monsoon season. The file contains a VA history and physical 20839639 examination performed in July 2008 in which the Veteran endorsed a history of asbestos "around the kidneys" although he denied chest pain or shortness of breath. Past medical history was negative for chronic obstructive pulmonary disease (COPD) or asthma. The Veteran described occupational history of roofing for three years (1970s) and driving a truck from 1985-2007. Review of symptoms (ROS) revealed no respiratory abnormalities; examination showed the chest and lungs to be normal to percussion and auscultation. Clinical assessment was significant only for continued tobacco use. The Veteran presented to the VA PCC in September 2008 to establish care at that facility. Clinical examination of the lungs showed decreased bilateral breath sounds without wheezing, basal rales, cough or labored breathing. The Veteran reported a history of asbestos exposure, and the attending physician ordered a chest X-ray. The Veteran thereupon had a VA-contracted chest X-ray in September 2008 by the Imaging Center of Columbus, performed due to clinical history of asbestos exposure. The impression was blunting of the left costophrenic angle and mild elevation of the left hemidiaphragm that were possibly related to pleural scarring and/or fluid. Changes of COPD were also present. The Veteran's VA primary care physician advised the Veteran to get annual chest X-rays due to his reported history of asbestos exposure. The Veteran had a chest X-ray at Baptist Hospital in October 2008 that showed the lungs to be free of infiltrates and masses. There was no indication of acute chest disease. The Veteran contacted the VA PCC in May 2009 to advise his primary care physician that he had been told his asbestosis was in the area of his kidneys, not his lungs. A VA renal ultrasound was accordingly performed in May 2009, but it resulted in impression of negative study. The Veteran presented to the VA PCC in September 2009 for annual evaluation. Examination of the lungs showed clear bilateral breath sounds and non-labored breathing but frequent course coughing. The clinical impression was upper respiratory infection (URI) and tobacco use disorder. The Veteran presented to the VA PCC in December 2009 stating he had been recently treated by a non-VA provider for pneumonia; he complained of a continued persistent cough. Respiratory examination was unremarkable. The clinical impression was pneumonia and URI; the treatment plan was to obtain additional X-rays and then determine whether additional antibiotics would be needed. The Veteran had a VA examination in May 2012, performed by a physician who reviewed the claims file. The Veteran reported that for the past 8 years he had noticed becoming short-winded with exertion. In July 2006 he was advised he had "something in his lung" that could be asbestos-related, and was discharged home. He has a repeat admission for pneumonia in 2009. Since then he had not been on any maintenance medications but had developed a persistent cough and occasional wheezing, treated by using an inhaler. The examiner performed a thorough examination and noted clinical observations in detail, to include diagnostics of record that included X-rays and pulmonary function tests (PFTs). The examiner diagnosed COPD and stated an opinion that the Veteran's disorder was not likely related to service. The examiner noted that current X-rays were consistent with previous notations of pleural thickening, which could be associated with asbestos exposure in someone with documented exposure. However, the Veteran's current diagnosed disorder was COPD, which is most likely attributable to the Veteran's long history of tobacco abuse and not likely secondary to asbestos exposure or to active service to include herbicide exposure. Review of the file shows the Veteran is competently diagnosed with COPD. Thus, the first element of service connection - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). There is no indication in STRs that a chronic lung disorder became manifest during service, nor has the Veteran asserted chronic or recurrent symptoms since discharge from service. STRs in fact show the Veteran did not have a chronic respiratory disorder at the time of his discharge, and the Veteran himself has asserted that his current respiratory abnormality was first noted in 2006, 25 years after his discharge from service. COPD is not a disease listed in 38 C.F.R. § 3.309(a) as one for which service connection as a chronic disease can be considered. There is accordingly no basis under which the Board can find the Veteran had a current lung disorder that began during service. The Veteran is presumed to have been exposed to herbicides in Vietnam, but as indicated above Update 2010 specifically found that COPD is not a disease for which an association can be presumed for such exposure. The VA examiner in May 2012 found that there is no direct association between the Veteran's COPD and exposure to herbicides; the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Accordingly, the Board cannot find the Veteran's respiratory disorder is related to herbicide exposure. Combee, 34 F.3d 1039, 1042. The Veteran has also asserted his respiratory disorder may be associated with exposure to asbestos during service. The Board notes that asbestos exposure during service is not shown. The Veteran's duties as a supply specialist and warehouse worker are not associated with asbestos exposure, nor is his duty on the perimeter of a supply depot in Vietnam (the Veteran cites flares and barbed wire, but these do not suggest asbestos). The Veteran in fact appears to have informed Summit Health System in June 2009 that he had asbestos exposure in his post-service job. In any event, while the Veteran has demonstrated radiographic evidence of pleural thickening possibly related to asbestos exposure, this is simply a clinical finding; the Veteran has not actually been diagnosed with asbestosis or other respiratory disease specifically related to asbestos exposure. Accordingly, the question of where the Veteran may have been exposed to asbestos is essentially moot. The file contains competent medical opinion in the form of the VA examination report of May 2012 stating that the Veteran's diagnosed COPD is less likely than not related to service. The Board finds this opinion is highly probative as the examiner was informed of the factual background as demonstrated by his review of the file and his recitation of the Veteran's subjective history, and the examiner also provided a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Further, this competent and probative opinion is not contradicted with any other medical evidence of record. The Veteran has asserted his personal belief that his claimed lung disorder is due to service. While the Veteran is competent to describe his symptoms, his lay assertions are offered as an opinion regarding the etiology of a disease that became manifest several decades after separation from service. It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Further, the question of the etiology of a respiratory disease remote from service is a complex medical question that is not within the competence of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In sum, based on the evidence and analysis above the preponderance of the competent and probative evidence is against a finding that the Veteran had a lung disability which arose in service or is otherwise related to service. Accordingly, the criteria for service connection are not met. 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a lung disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs