Citation Nr: 1335519 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-32 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a pulmonary disability, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. In a September 2011 Board decision, the claim was remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in a June 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDING OF FACT The competent medical evidence of record does not support a finding that the Veteran's pulmonary disability is related to his military service to include as due to asbestos exposure. CONCLUSION OF LAW A pulmonary disability was not incurred in or aggravated by the Veteran's active military service to include as due to asbestos exposure. 38 U.S.C.A. §§ 1101, 1110 (West Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & West Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2012); 38 C.F.R. § 3.159(b) (2013). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (April 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) As to the pending claim, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. Through a notice letter dated in June 2006 the RO notified the Veteran of the information and evidence needed to substantiate his claim. Moreover, pursuant to the September 2011 Board Remand, the Veteran was provided with a September 2011 letter in compliance with DVB Circular and M21-1, Part IV, regarding his alleged exposure to asbestos while in the military. The Board also finds that the June 2006 notice letter satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, should be obtained by the claimant and which evidence, if any, would be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C. F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of this issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The evidence in the claims file includes VA and private treatment records, statements from the Veteran, Social Security Administration (SSA) records, service treatment records (STRs), and service personnel records. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that needs to be obtained. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. Additionally, the Veteran was afforded VA examination in October 2011 as to the pending claim, the report of which is of record. 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). As noted below, the Board finds that the VA examination report is sufficient, as it is predicated on consideration of the private and VA treatment records in the Veteran's claims file, as well as specific examination findings. The VA examiner considered the statements of the Veteran, and provided a rationale for the findings made, relying on and citing to the records reviewed, and he provided findings sufficient to apply the rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the pending claim has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b) (2013), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 497, 495-96 (1997). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Lay evidence may serve to support a claim for service connection by supporting the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical 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, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. 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). Here, the Veteran seeks entitlement to service connection for a pulmonary disability, which he asserts was incurred during his military service. See the Veteran's statement dated October 2011. Specifically, he asserts that he was exposed to asbestos on pipes and insulation while working in warehouses in Germany. Id. A review of the Veteran's STRs demonstrates that he was not diagnosed with a pulmonary disability during his military service. The Board recognizes that the Veteran received in-service treatment for acute upper respiratory infections in January 1965 and January 1966. However, chronic respiratory symptoms, to include shortness of breath, were not documented at any time during the Veteran's military service. Pertinently, the Veteran's October 1966 service separation examination was absent any diagnosis or complaints of a pulmonary disorder. With regard to the claimed in-service asbestos exposure, the Veteran's service personnel records confirm that he served as a warehouseman while stationed in Germany from August 1965 to November 1966. See, e.g., the Veteran's statement dated October 2011. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The Veteran's specific contention is that he was exposed to asbestos coated pipes and wall insulation while performing his duties. See the Veteran's statement dated October 2011. In consideration of the Veteran's military occupational specialty, the Board cannot disagree with the Veteran's contention in light of the provisions of M21-1, described above. Accordingly, the Board does not dispute that the Veteran was exposed to asbestos while performing his duties as a warehouseman; therefore, in service asbestos exposure is conceded to this extent. Crucially, post-service treatment records do not document treatment for a pulmonary disorder until September 1996. Specifically, at that time, the Veteran described experiencing a chronic smoker's cough for a number of months prior to seeking treatment. He stated that he smoked between one to one and a half packs of cigarettes per day for the last fifteen years, and prior to that he smoked between two and two and a half packs per day. A chest x-ray showed hyperinflation of the lungs and changes consistent with chronic obstructive pulmonary disorder (COPD) including a flattened diaphragm. See the private treatment record dated September 1996. The Veteran subsequently received private medical treatment for respiratory complaints in March 2004 and September 2004, at which time a chest x-ray revealed "right upper lobe infiltrate ... which is new." An October 2004 treatment record noted "no known exposure to asbestos, fumes or dust." However, a May 2005 VA treatment record documented the Veteran's complaints of shortness of breath and further noted that he "[u]sed to have frequent attacks when working as a welder due to dust and chemical fumes." In an April 2005 SSA disability report, the Veteran indicated that he was diagnosed with emphysema eight years prior. In an October 2005 VA treatment record, the treating physician noted that the Veteran worked as a welder for twenty-five years and dealt with "papers, fumes, chemicals. Also not wearing mask at work secondary to [claustrophobia]." The physician additionally indicated that the Veteran had smoked an average of 90 packs of cigarettes per year for the past forty years. See the VA treatment record dated October 2005. VA treatment records dated August 2007 documented the Veteran's occupational use of heavy equipment. The Veteran was afforded a VA examination in October 2011 at which time the VA examiner reviewed his claims file and confirmed a diagnosis of COPD. A contemporaneous computed tomography (CT) scan revealed "moderate emphysema; calcified mediastinal lymph nodes, consistent with prior granulomatous disease; no CT evidence of prior asbestos exposure; atherosclerosis; fatty liver." With respect to medical nexus, the examiner concluded, "[t]he claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness." He explained, "[n]o chest CT scan evidence of prior asbestos exposure. STRs with NO diagnosis of chronic pulmonary/respiratory illness and separation physical negative for respiratory disease or shortness of breath." He continued, "Veteran with long history of heavy chronic smoking, currently diagnosed with severe COPD since 1995 (approx.). COPD is typically caused by long-term exposure to airborne irritants, such as: tobacco smoke, dust, chemical fumes, air pollution." The October 2011 VA examination report appears to have been based upon thorough review of the record as well as thoughtful analysis of the Veteran's entire history. The VA examiner noted the Veteran's report of in-service exposure to asbestos and development of his current respiratory disabilities, and further indicated that he relied upon the Veteran's medical records, clinical experience, and medical research in rendering his opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Moreover, the October 2011 VA opinion is consistent with the Veteran's post-service treatment records which confirm his long history of cigarette smoking as well as occupational exposure to airborne irritants. Further, post-service treatment records do not document any treatment or complaints of respiratory problems until 1996, more than thirty years after the Veteran's military service. There is no other relevant medical opinion of record. To the extent that the Veteran is contending that the claimed pulmonary disability is related to his military service, the Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lay reports of current disability are supported by the clinical evidence. However, at issue in this case is whether there is competent evidence linking his current complaints and symptomatology to in-service asbestos exposure. In this regard, there is no indication that the Veteran is competent to comment on medical matters such as etiology. See 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of the claim are not competent evidence of a nexus between claimed disability and military service. The Board further observes that the Veteran's contentions in support of service are contradicted by the October 2011 VA examiner, who specifically considered his lay assertions and any such inferences contained in the record in the negative nexus opinion. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the October 2011 VA examination report, and the evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from a pulmonary disability, which is related to his military service to include asbestos exposure. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a pulmonary disability, to include as due to in-service asbestos exposure, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs