Citation Nr: 1323733 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 12-18 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb 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 had active service from December 1941 to October 1947. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT The most probative competent and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a respiratory disorder that is causally related to his active military service, to include exposure to asbestos, nor did he have bronchiectasis to a compensable degree within one year of service. CONCLUSION OF LAW The criteria for the establishment of service connection for a respiratory disability, to include as secondary to exposure to asbestosis, are not met as the disorder was not incurred in or aggravated by active duty; nor may bronchiectasis be presumed to have been so incurred or aggravated. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in October 2010, prior to adjudication of the claim for service connection, which informed him of the requirements needed to establish entitlement to service connection for the disability at issue. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. He was also advised of the criteria for assignment of a disability rating, and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A relevant VA evaluation and nexus opinion was obtained in July 2012. 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 July 2012 VA examination obtained in this case is adequate. The Veteran's claims file was reviewed, and clinical examination findings were reported. The opinions considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for a respiratory disorder, to include as secondary to service exposure to asbestos. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In the case of bronchiectasis, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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. However, VA has 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 information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The Veteran's service treatment reports do not reveal any complaints or findings of respiratory disability, to include on discharge examination, which included a chest X-ray, in October 1947. Acute pharyngitis was noted in March 1947. The Veteran was hospitalized at a VA hospital in March 1958 with complaints of a six month history of shortness of breath and chest pain. Physical examination, which included a chest X-ray, was within normal limits. Indigestion was diagnosed. VA treatment reports reveal that a January 1989 chest X-ray showed basilar lung markings that had a slight possibility of representing pneumonitis but more likely were atelectatic because of poor inspiration. Emphysema was diagnosed on a chest X-ray in March 1999. Chronic bronchopulmonary disease, nothing acute, was noted on a chest X-ray in February 2007. A February 2008 chest X-ray revealed old healed granulomatous disease, most likely histoplasmosis, which was noted to be unchanged since November 2007. According to a CT scan in May 2010, there were two noncalcified pulmonary nodules that raised the possibility of malignant neoplastic disease. According to a pulmonary evaluation in June 2010, the Veteran had lung nodules suggestive of old granulmatous disease; it was noted that he had been on ships during World War II, so he probably had asbestos exposure, and that he was a former smoker. The impressions on a CT scan of the thorax in September 2010 were bronchitis and bronchiectasis. According to June 2010 records from The Regional Medical Center, a PET CT examination of the body did not show any activity within the 1.2 cm nodule seen in the upper lobe segment of the right lung. The small area described in the left lung on the prior CT study measured 4 mm, which was noted to be below the resolution of a PET scanner. A VA examination was conducted in July 2012. Although the actual claims folder was not available for review, the examiner reviewed medical records consistent with that contained in the claims file, to include service treatment records. The Veteran reported that he was an officer's cook in the United States Navy. He worked in the Fire Department after service discharge. Bronchiectasis was diagnosed. The examiner concluded that the Veteran's lung disability was less likely than not related to respiratory complaints in service because there was no evidence in service of pulmonary infections or bronchitis that warranted recurrent antibiotic therapy, which would be required to lead to current bronchiectatic changes as seen on the most recent CT scan. The Veteran's condition was considered less likely than not related to asbestosis because the chest X-rays and CT scans on file do not suggest plaquing typically seen with exposure to asbestosis. Added to the claims file in July 2012 are medical articles on asbestos exposure in the Navy. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The above medical evidence does not include objective evidence showing that the Veteran has a respiratory disorder related to service, including related to exposure to asbestos in service. The Veteran's military occupational specialty was officer's cook. Even if it is conceded that the Veteran's military occupation involved exposure to asbestos, as noted in VA treatment reports dated in June 2010, there has been no demonstration by competent evidence that a current respiratory disability is due to such exposure, or otherwise due to service. Although acute pharyngitis was noted in March 1947, no chronic respiratory disorder was found in service, including on discharge evaluation in October 1947. In fact, the Veteran has not contended that he had respiratory problems in service or within a year of service discharge. The initial post-service evidence of respiratory disability was not until 1989, more than 41 years after discharge, when lung marking were noted on chest X-rays. Emphysema was diagnosed in March 1999, with bronchitis and bronchiectasis subsequently diagnosed. Additionally, the only nexus opinion on file is against the claim. As noted above, the VA clinician who provided the July 2012 opinion was familiar with the Veteran's extensive medical history, to include service treatment records, and examined the Veteran. The VA examiner concluded in July 2012, after review of the Veteran's medical history and examination of the Veteran, that the Veteran's respiratory disorder is not related to service, to include exposure to asbestos, because there was no evidence in service of pulmonary infections or bronchitis that warranted recurrent antibiotic therapy, which would be required to lead to current bronchiectatic changes as seen on the most recent CT scan. The Veteran's condition was considered less likely than not related to asbestosis because the chest X-rays and CT scans on file do not suggest plaquing typically seen with exposure to asbestosis. As previously noted, although the VA examiner in July 2012 did not have the actual claims file, he had access to the Veteran's medical records, to include service treatment records and VA records. The only medical records on file to which he would not have had access are the June 2010 reports from the Regional Medical Center, which involve a recent PET scan and do not support a finding in favor of the claim. The lay statements from the Veteran have been taken into consideration in adjudicating this appeal. Although the Veteran is competent to report his subjective symptoms, such as lung discomfort, he is not competent to diagnose a respiratory disorder as due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in a case involving a complex medical matter such as bronchiectasis, in the absence of demonstration of the necessary medical training. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran has not been shown to have medical training. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection for a respiratory disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CONTINUED ON NEXT PAGE ORDER Service connection for a respiratory disorder, to include as secondary to exposure to asbestos, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs