Citation Nr: 1322754	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  11-22 317	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a pulmonary disorder, including as due to exposure to asbestos.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel


INTRODUCTION

The Veteran served on active duty from September 1950 to June 1952.

This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran worked as a mechanic in service, and had a decades long career as a mechanic post service, together with a decades long history of tobacco use.  

2.  A VA examiner concluded it was not likely the Veteran's currently claimed disability is related to service.  


CONCLUSION OF LAW

A pulmonary disorder was not incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Notice in this case was addressed in May and July 2009 letters that advised the Veteran of the information and evidence necessary to substantiate his claim, including the disability-rating and effective-date elements of a service connection claim and the particular elements to support a claim of asbestos exposure.  The Veteran had ample opportunity to respond prior to issuance of the January 2010 decision on appeal.

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, and records of his private medical treatment.  The Veteran was afforded a VA compensation and pension examination in September 2009 germane to his claim on appeal.  

The Board notes that the evidence already of record is adequate to allow resolution of the appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 


II.  Analysis

The Veteran contends that he was exposed to asbestos while stationed in Korea.  Specifically, he alleges that he was exposed to asbestos because he was working on brakes as a vehicle mechanic and, consequently, believes that his current pulmonary problems were caused by asbestos exposure in service.  For the reasons that follow, his claim is denied. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations 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).  

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 hearing 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.  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.  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).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  Savage, 10 Vet. App. 488, 494-97.  See also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event.  Conversely, the claim will be denied if the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  All reasonable doubt is resolved in the Veteran's favor.  38 CFR § 3.102.  

First, the Board acknowledges the Veteran currently suffers from a pulmonary disorder.  His private treatment records from various physicians, dating from November 2001 through August 2010, note the Veteran has been diagnosed with interstitial pneumonia, pulmonary fibrosis, and chronic obstructive pulmonary disorder (COPD).  The Veteran underwent a VA examination in September 2009, at which time the VA examiner also provided a diagnosis of COPD.  A subsequent VA examiner in April 2011 and VA treatment records similarly show he suffers from these disorders.

Next, the Board finds that the Veteran's service treatment records are completely silent regarding any complaints, treatment, or diagnoses of respiratory or pulmonary, including his June 1952 separation examination.  Thus, there is no evidence of an in-service incurrence of a pulmonary disorder.  

However, the Veteran's asserts he was exposed to asbestos while working on brakes in service.  Since his DD 214 shows he took an auto mechanics course, and that he was assigned to a service battery in an artillery battalion, it may be reasonably concluded he worked on brakes in service, and would have been exposed to asbestos as may have been contained in those devices.  

The record also establishes the Veteran had an extensive smoking history, with an August 2002 record noting the Veteran's pack and a half a day smoking habit since he was 13.  Likewise, he had an approximate 50 year post service history as a mechanic, which in turn would have exposed him to any asbestos in the brakes on which he worked during that time.  

The private and VA records note the Veteran's history of asbestos exposure, which suggest a relationship between such exposure and the disabilities identified, but they are not at all definitive in that respect.  

The Veteran was examined for VA purposes to address the causation question.  The examiner acknowledged that working as a mechanic can produce the claimed disability, but noted tobacco abuse can as well.  However, in the context of the Veteran's 50 year post service history as a mechanic, together with his smoking history, the examiner concluded it would be mere speculation to conclude his current lung condition was due to military service.  

Here, the only potential link between current disability and service would be the Veteran's potential periodic exposure to asbestos over a 2 year period, versus the decades long history of tobacco use and periodic asbestos exposure post service as a mechanic until 2009.  The September 2009 VA examiner's considered that and concluded it would be speculative to link the claimed disability to service.  Thus, the Board finds that the greater weight of the evidence is against the conclusion the Veteran's pulmonary disability was incurred in service.  

The Board acknowledges the Veteran is competent to report difficulty breathing and other respiratory and pulmonary symptoms.  However, his statements regarding whether his currently diagnosed pulmonary disorders are the result of his military service, including as due to asbestos exposure, ultimately involves a medical, not lay, determination, thus rendering his opinion less probative than the opinion of the September 2009 VA medical examiner that was charged with making this necessary determination.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  There is simply no competent evidence of a nexus between the Veterans's currently diagnosed pulmonary disorders and his active service.  The Veteran's private and VA treatment providers have not found that there is a causal link between his disorder and his active service, aside from merely restating the Veteran's reported history that he was exposed to asbestos.  To the extent that the Veteran contends that such a link exists, the Board again finds that he is not competent to do so.  

Accordingly, the Board concludes that the criteria for service connection have not been met with respect to the Veteran's claim for service connection for pulmonary disorder, including as due to asbestos exposure.  38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.  







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ORDER

Entitlement to service connection for a pulmonary disorder, including as due to exposure to asbestos, is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs