Citation Nr: 1323199	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  09-08 384	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel


INTRODUCTION

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).

The Veteran served on active duty from November 1950 to December 1953.

This matter had come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claim for service connection for pulmonary fibrosis, to include as secondary to asbestos exposure.  The Veteran appealed.

In an October 2011 decision, the Board denied service connection for pulmonary fibrosis, including as due to asbestos exposure.  The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court).  In a June 2012 Order, the Court vacated the Board's October 2011 decision and remanded the matter to the Board for development consistent with the Joint Motion for Remand (JMR) submitted by the parties.  

In January 2013, the Board remanded this matter for development consistent with the JMR.  The requested development has been completed.

The issues of entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for tobacco use as secondary to the acquired psychiatric disorder, and entitlement to service connection for pulmonary fibrosis as secondary to tobacco use have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.



FINDINGS OF FACT

1. Neither the claimed asbestos exposure, nor the other underlying incident of hazardous materials exposure, has been objectively established.

2. Even assuming exposure to asbestos or other hazardous material during military service, the weight of the evidence of record is against a finding that there is an etiological link between inservice exposure, or any other aspect of service, and the development of pulmonary fibrosis.


CONCLUSION OF LAW

The criteria are not met to establish service connection for pulmonary fibrosis, including due to asbestos exposure. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duty to Notify and Assist the Claimant

The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf.  See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II").  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim.  73 Fed. Reg. 23,353 -56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1).

The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA 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, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Through VCAA notice correspondence dated from May 2007, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  Meanwhile, an addendum to the VCAA correspondence informed the Veteran regarding both the disability rating and effective date elements of a pending claim for benefits consistent with the holding in the Dingess/Hartman decision.

The relevant notice information must have been timely sent.  The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  In this instance, the VCAA notice correspondence was sent before issuance of the October 2007 rating decision adjudicating the claim now before the Board, and thus was timely.

The RO has taken appropriate action to comply with the duty to assist the Veteran in this case, through obtaining service treatment records (STRs) and service personnel records.  Notably, pursuant to the January 2013 Board remand, the RO made additional attempts in March 2013 to verify the Veteran's service duties while stationed in Baltimore, Maryland, to include whether his unit was involved with or stationed around any construction or renovation projects; however, the U.S. Coast Guard Historian's Office was unable to provide additional details.  In April 2013, the RO made a formal finding that additional service department records were not available and that all procedures to obtain records had been followed.  The RO notified the Veteran of the unavailability of additional records in April 2013, and asked that he provide any records in his possession.

The Veteran was also provided VA Compensation and Pension examinations in October 2007 and March 2013.  38 C.F.R. § 3.159(c) (4).  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 opinions obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file.  They consider all of the pertinent evidence of record and the statements of the Veteran, and the examiners provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).

In support of his claim, the Veteran provided private treatment records, and several personal statements.  He testified during a Board videoconference hearing.  There is no indication of any further relevant evidence or information, which has not already been obtained.  Thus, the record as it stands includes sufficient competent evidence to decide the claim.  Under these circumstances, no further action is necessary to assist the Veteran.

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits.

Background and Analysis

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012).  Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b).  The United States Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a), even if such is noted to be "chronic."  See Walker v. Shinseki, 708 F.3d 1331 (2013).

As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection.  However, VA's Adjudication Procedure Manual provides guidance in adjudicating these claims.  See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C (December 13, 2005) (previously cited at M21-1, part VI, paragraph 7.21).

The M21-1 MR provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service.  VA must also determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, taking into consideration the latency and exposure information found at M21-1 MR, Part IV, Subpart ii, Chapter 1, section H.

The following is a non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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 further 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(a).  In addition, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos.  See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(g).

Meanwhile, the Court has held that the M21-1 MR Adjudication Procedure Manual does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the manual listed as having higher incidents of asbestos exposure.  See Dyment v. West, 13 Vet. App. 141, 145 (1999); Ashford v. Brown, 10 Vet. App. 120 (1997).

The Board finds that the criteria to establish service connection for pulmonary fibrosis due to asbestos exposure have not been satisfied in this case.  Essentially, the weight of the evidence of record is against a finding of a causal linkage between a current respiratory disability and the Veteran's active military service.  

The Veteran presently has pulmonary fibrosis.   His treating physicians and the VA Compensation and Pension examiners tend agree on this point.  What remains to be shown, however, is that the Veteran's pulmonary fibrosis is etiologically related to some aspect of his military service -- namely, to alleged asbestos exposure.  The presence of a causal nexus to service is a crucial element to establish service connection for a claimed disability.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."); Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  Here, this causal nexus to service remains unestablished.  Of particular note, the record does not conclusively indicate exposure to asbestos, or other hazardous substances in service.  Moreover, even assuming asbestos exposure therein, the most persuasive medical evidence appears to disassociate current respiratory impairment from any such hazardous exposure.

Taking into account these two reasons for the absence of a showing on the element of a causal nexus to service, the Board first addresses the issue of proof of asbestos exposure (or other hazardous materials exposure) during military service.  The Veteran asserts that he had asbestos exposure while serving in the Coast Guard on various ships between 1951 and 1953.  At one point, on VA Compensation and Pension examination in October 2007, he described asbestos exposure when he was on duty watching the boiler.  More recently at the September 2011 hearing, however, he denied exposure in this manner, and instead contended that asbestos was placed generally throughout the ships on which he served.  The Veteran also indicates that in mid-1951 while stationed in Baltimore, Maryland his unit was assigned to clean and restore a print shop and turn it into a barracks, and that this required clearing up old dye and ink all throughout the building.  He contends that his participation in the renovation exposed him to asbestos.  The Veteran has alleged other sources of exposure to hazardous chemicals, as well, stating that he worked in the boatswain locker handing out chemicals, lead paint, and cleaning supplies.  Unfortunately, to date, there is no objective documentation to verify any of the claimed potentially hazardous activities.

As it pertains to claimed asbestos exposure, there is nothing listed within the Veteran's service personnel records as to occupational specialty or hazardous duty assignment that would have likely entailed asbestos exposure.  The Veteran contends that he had intermittent exposure to asbestos placed throughout the ship.  Unfortunately, this offers little for the Board to proceed upon and formulate any meaningful request for in-service documentation.  While he has claimed that he was exposed to asbestos and other hazardous materials while renovating an old print shop, the U.S. Coast Guard Historian's Office was not able to verify the Veteran's duties while stationed in Baltimore, Maryland, nor was it able to determine whether he was involved with the construction work and exposed to hazardous materials as alleged.  The M21-1MR lists "demolition of old buildings" and "carpentry and construction" as occupations that potentially involved exposure to asbestos.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9(f).  The manual specifically indicates that it does not create a presumption of in-service exposure to asbestos for claimants that worked in one of these occupations.  In this case, at most, the Veteran is competent to report his involvement in the old print shop renovation.  He is not competent to indicate whether the renovation in question exposed him to asbestos or other hazardous materials.  An incident involving exposure to asbestos and other hazardous materials as a non-medical matter would tend to be best supported by documentary evidence, rather than the Veteran's assertions alone.  See e.g., Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident).

Moreover, there is no compelling lay witness testimony from the Veteran or any third-party as to the likelihood of asbestos exposure, given that the Veteran does not cite any specific situation or incident, but rather raises the idea of generally working and living on a ship and working on the building renovation in Baltimore that may have had asbestos present somewhere.  In sum, the Board cannot find that there is competent and credible evidence of asbestos exposure in this case, as to constitute a definitive finding of an underlying injury in service.

The Board must reach a similar conclusion in regard to the other claimed sources of hazardous chemical exposure, inasmuch as even taking the Veteran's assertions at face value, there is no way to conclusively show that the substances to which he was exposed in a boatswain's locker, or for that matter upon being asked to clean up the site of an old print shop were indeed of a hazardous type, such that they could have had a deleterious impact upon his respiratory health for the first time several decades thereafter.  Without proof of underlying asbestos exposure during military service, or any other pertinent exposure to hazardous substances therein, there is no established in-service injury to the Veteran, and by implication, no basis upon which to demonstrate a causal nexus between a current respiratory disorder and his military service.  Absent competent evidence of a causal nexus, a claim for service connection cannot be proven.

For the purpose of rendering a comprehensive decision, however, the Board has still further reviewed this case from the perspective of whether the requirement of a causal nexus is met, even assuming for argument's sake that the underlying injury of asbestos exposure (as the most plausible of any of the claimed instances of hazardous exposure) had been sufficiently proven.

On this subject, in February 2006, a private provider, Dr. A.G.B., noted that the Veteran smoked for decades and that his pulmonary function pattern likely reflects the Veteran's status following cessation of smoking years ago.  The October 2007 VA examination report indicates a diagnosis of pulmonary fibrosis, and addresses the question of whether said condition was related to in-service asbestos exposure.  The VA examiner opined that in-service exposure to asbestos had essentially no relationship to the Veteran's pulmonary fibrosis.  The VA examiner then qualified that a pulmonary function study (PFT) and chest x-ray had been ordered, and if the x-ray were to indicate asbestos exposure changes in the lung, it would "change my opinion as to the possibility of asbestos as being the reason for calcification in the lung x-ray."  The examiner emphasized, however, that pulmonary fibrosis was normally an inflammatory disease and asbestos produced calcification and cancer.

Immediately following the VA exam, a VA chest x-ray was taken which indicated an impression of pulmonary scarring and fibrosis bilaterally diffusely, with what appeared to be some pleural plaques present bilaterally with no calcium noted of the hemidiaphrams.  The reviewing physician further indicated "question asbestos exposure complex."

Given that the October 2007 x-ray report indicates the presence of pulmonary scarring and fibrosis, bilaterally, and some pleural plaques and that the M21-1MR provides that inhalation of asbestos fibers can produce both "fibrosis" and "pleural plaques," M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9(b), the Board remanded this matter in January 2013 for an addendum opinion regarding the etiology of the Veteran's lung condition.  The October 2007 Compensation and Pension examiner was not available; therefore, a new examination was conducted in March 2013.  The March 2013 examiner noted that personnel records did not indicate what duties the Veteran performed when first arriving in Baltimore and that service treatment records were not available.  She opined that the Veteran's pulmonary fibrosis was less likely as not due to exposure to asbestos.  In the rationale, she noted that his condition is most commonly caused by tobacco use.  She further stated that 

OTHER CAUSES ARE SILICA (CONCRETE/SAND) DUST, GRAIN DUST, BIRD AND ANIMAL DROPPINGS, ASBESTOS DUST EXPOSURE, RADIATION TREATMENT, SOME CHEMOTHERAPIES, CERTAIN HEART MEDICATIONS (NONE ARE AMONG THE MEDICATIONS THIS VETERAN IS CURRENTLY PRESCRIBED) AND CERTAIN ANTIBIOTICS (UNCOMMONLY USED).  IN ADDITION, TUBERCULOSIS MAY ALSO CONTRIBUTE (THE PULMONARY RECORDS DOCUMENT POSITIVE TUBERCULINE SKIN TEST APPROX[IMATELY] 25 YEARS AGO WHICH WAS NOT TREATED).  OTHER CAUSATIVE MEDICAL CONDITIONS ARE PNEUMONIA, SYSTEMIC LUPUS, SARCOIDOSIS, [AND] SCLERODERMA-NONE OF WHICH APPLY TO THIS VETERAN.  IN MOST CASES[,] A CAUSE FOR THE FIBROSIS IS NEVER DETERMINED (IDIOPATHIC PULMONARY FIBROSIS).  ASBESTOS IS LESS LIKELY THAN NOT THE CAUSATIVE AGENT IN THIS VETERAN'S PULMONARY FIBROSIS.  TOBACCO AND TUBERCULOSIS (POSITIVE PPD) ARE MORE LIKELY THAN NOT THE CAUSATIVE AGENTS.

Notably, too, is the absence of any other medical opinion on record indicating or suggesting the Veteran has asbestosis, or a respiratory condition, which is a direct residual of underlying asbestos exposure.  It follows that the medical opinion evidence addressing causation effectively rules out a causal connection between asbestos exposure and present-day respiratory impairment.  Significant, as well, is that there is nothing to suggest that any other form of hazardous chemical exposure, besides asbestos, caused or contributed to respiratory impairment -- particularly given the nearly 40 year interval between discharge from service, and when the Veteran first began experiencing some respiratory symptomatology.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim).

As indicated previously, however, the most determinative factor in considering the instant claim is the lack of conclusive evidence of underlying asbestos exposure or other hazardous materials exposure, as to comprise an underlying in-service injury.

The Veteran's own assertions have also been afforded appropriate weight however, as he is a layperson, he cannot opine on the causation of an asbestos related respiratory disorder, as the causal origin of respiratory impairment is not a matter easily within the purview of lay observation.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

Briefly, the Veteran's representative argues that the March 2013 VA examiner's opinion is inadequate because the examiner did not address whether the tuberculosis could have had onset during service.  Further, he attacks the examiner's credibility by questioning whether she reported the Veteran's tuberculosis to the proper authorities since she found that the Veteran had had tuberculosis for many years.  These arguments are without merit.  The examiner never diagnosed tuberculosis.  She attributed his current pulmonary fibrosis to past tuberculosis based on the notation in the February 2006 treatment record from Dr. A.G.B., which indicates that the Veteran had a positive tuberculin test approximately twenty years ago.

The Veteran's representative also argues that the examiner ignored the Veteran's lay testimony alleging exposure to droppings, cement dust, and asbestos.  However, even if the Board presumes that the Veteran worked on a building renovation as noted above, there is no competent evidence supporting the allegation of exposure to hazardous materials.

Finally, the representative alleges that the Veteran served as port security and was trained in bulk explosives.  He insinuates that the Veteran's duties caused anxiety and stress, which led to smoking.  The representative also indicates that the Veteran had years of post service mental health care, which he claims is noted in the file that has not been developed.  Regarding this argument, the Veteran's informal claims for service connection for an acquired psychiatric disorder, for tobacco use as secondary to the acquired psychiatric disorder, and for pulmonary fibrosis as secondary to tobacco use have been referred for development in the first instance.  As these claims are not on appeal, the Board does not have the jurisdiction to adjudicate any of these matters.

For these reasons, the Board is denying the claim for service connection for pulmonary fibrosis.  The preponderance of the evidence is against this claim, and under these circumstances, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Service connection for pulmonary fibrosis, including due to asbestos exposure, is denied.


____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs