Citation Nr: 1403474 Decision Date: 01/27/14 Archive Date: 02/10/14 DOCKET NO. 10-19 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a pulmonary disability, to include as a result of asbestos exposure. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975 and May 1976 to March 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2012, the claim was remanded for additional evidentiary development, and it has now been returned for further appellate consideration. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran currently suffers from a pulmonary disorder which is the result of a disease or injury in active duty service or any incident thereof, to include asbestos exposure. CONCLUSION OF LAW A pulmonary disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in October 2009, November 2009, and November 2010) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The Board further notes that the Veteran was accorded a VA medical examination in December 2012 which, as detailed below, included opinions that addressed the etiology of the Veteran's pulmonary disorder. To that end, 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 examiner's opinion was based upon review of the claims file and examination of the Veteran. Adequate rationale was provided for the medical opinion. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). Service Connection A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (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) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, 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 VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also 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 VI, Subpart ii, Chapter 2, Section C, 9 (f). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). 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 former 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. See VA O.G.C. Prec. Op. No. 04-00. Background The Veteran contends that he currently has a pulmonary disability that is the result of having been exposed to asbestos while serving aboard the USS CAMDEN AOE-2 from 1972 to 1975 and from exposure to various chemicals, paint, and secondhand smoke during military service. The Veteran's DD-214 and service personnel records (SPRs) confirm that he was assigned to the USS CAMDEN (AOE-2). His military occupational specialty was equivalent to a civilian "Water Tran. Occups." He also completed firefighting training in 1972. The Veteran's service treatment records (STRs) from his initial period of military service reflect that from early May 1973 to mid-October 1974, he received treatment on several occasions for upper respiratory infections (May 1973) and cold and flu-like symptoms. An August 1975 service separation examination report reflects that his lungs were evaluated as "normal." A January 1977 STR from the Veteran's second period of service shows that he reported having had a recent bout of "flu syndrome." Post-service VA and private medical records reflect that the Veteran had a history of having smoked cigarettes since 1971; that he smoked two packs of cigarettes a day; and, that he had been employed in manual labor for the previous 17 years. (See the April 2004 and May 2005 treatment reports.) A December 2010 report, prepared by Riverside Hilton Family, reflects that the Veteran's medical problems included, but were not limited to, acute bronchitis, chronic obstructive pulmonary disease (COPD) without exacerbation, tobacco use disorder, and dyspnea. In November 2012 the Board remanded the claim for additional evidentiary development, to include a contemporaneous examination addressing the etiology of the Veteran's current pulmonary conditions. The requested evaluation was conducted in December 2012. The December 2012 examiner noted that the claims file was reviewed. A diagnosis of COPD had been recorded as of August 2006. Based on her review of the file and physical examination, to include clinically indicated diagnostic testing, she opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by military service. She noted that there were several visits for cold and flu-like symptoms from 1973-1975 which were documented as acute self-limited conditions. The records did not state any complaints by the Veteran or a provider that mentioned any inhalation of paint fumes or vapors that might have caused this problem. Moreover, a review of the records revealed no connection of current pulmonary disease with inhalation of paint fumes or secondhand smoke, as he had been a smoker himself since 1971 to present. Additionally, paint fume exposure resulted in an acute irritant, and the Veteran would have been seen by medical for acute exposure to paint fumes due to respiratory irritation. The examiner noted that the claimant was seen by a private physician in August 2006, at which time it was noted that he had a history of smoking. Chest X-ray at that time, followed by a computerized tomography (CT) scan showed a 10 millimeter (mm) large nodule in the anterior basilar segment of the lower lobe. The chest X-ray was not substantiated by the CT scan of the chest which revealed no pulmonary masses. Therefore, the examiner concluded that it was less likely than not that the Veteran's exposure to paint fumes while on active duty was the cause of any pulmonary condition. Moreover, the etiology of COPD and emphysema was most often caused by smoking. Thus, the most likely rationale for the Veteran's pulmonary condition of COPD and emphysema was his years of smoking. Analysis It may reasonably be conceded (for purposes of this appeal) that he indeed (as alleged) was exposed to asbestos and paint fumes in the course of his service duties. As summarized above, the Veteran's respiratory disability has been diagnosed as emphysema and COPD; it is not in dispute that he has COPD. What he must show to establish service connection for the COPD is that such disability is related to his service, including his exposure to asbestos therein. Also, as summarized above, the Veteran's STRs including the Veteran's initial service separation examination report do not mention emphysema or COPD. While the Veteran was seen for upper respiratory complaints on numerous occasions during his first period of service and on at least one occasion during his second period of active duty, there was no diagnosis given at any time, and no pertinent complaints or findings were noted on service discharge examination from his first period of active service (when respiratory system evaluation was normal). Consequently, the record reflects that the respiratory problem in service was acute and resolved with no residual disability. Furthermore, there is no record, report, or even allegation of a respiratory/pulmonary disability being manifest in the immediate post service years. Consequently, service connection for emphysema/COPD on the basis that such disease became manifest in service and persisted is not warranted. Whether or not an insidious disease process such as emphysema/COPD is (or may be) related to remote service/environmental exposures therein in the absence of continuity of symptoms is a complex medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). In that regard the Board notes that development of the pertinent evidence was completed in compliance with VA's Manual guidelines for cases involving claims based on exposure to asbestos (as exposure to asbestos in service is conceded and a medical nexus opinion has been secured). The only medical evidence of record that specifically addresses the question of whether the Veteran's emphysema/COPD is related to his service, including as due to his exposure to asbestos and paint fumes therein, is the report of the December 2012 VA examination, when the examiner opined that the Veteran's COPD/emphysema was less likely as not (less than 50/50 probability) caused by or a result of exposure to asbestos or paint fumes in service. The examiner (who reviewed the record and examined the Veteran explained that diagnostic studies (chest X-rays and CT scans) did not show pathology reflective of asbestos exposure and identified the Veteran's smoking history as the most likely cause of the COPD. She noted that he paint fumes would have resulted in an immediate irritant that would have required contemporaneous treatment by medical. Also secondhand smoke was not the culprit of his problems as he was a long time smoker himself. She opined that his long history of cigarette smoking was the most likely rationale for his COPD/emphysema. Her opinion contains a complete description of the Veteran's pulmonary complaints/findings, was based on a thorough review of the medical evidence of record, and examination and interview of the Veteran. The Board finds her report to be adequate and probative evidence in this matter. There is no competent evidence to the contrary, and the Board finds it persuasive. The Veteran's own statements relating his COPD to his asbestos exposure and/or from paint fumes or secondhand smoke in service are not competent evidence in the matter. He is a layperson with no medical training; does not cite to any medical texts or treatises that support his theory of causation; has not submitted any supporting medical opinion (and does not offer any explanation of rationale, other than to note that he was exposed to asbestos and carbon tetrachloride in service (facts not in dispute)). He is considered competent to state that he has been experiencing certain symptoms such a dyspnea for many years, but he is not competent to diagnose that symptom or opine as to its etiology. See Jandreau, supra. Furthermore, there is no objective evidence that a chronic respiratory disorder was manifested prior to 2006. A lengthy time interval (approximately 30 years) between active service and the initial diagnosis of a pulmonary disorder (when a VA examination found COPD/emphysema) is, of itself, a factor weighing against a finding of service connection for the claimed respiratory disorder. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a pulmonary disorder, to include as a result of asbestos exposure. As the preponderance of the evidence is considered to be against the claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal must be denied. ORDER Entitlement to service connection for a pulmonary disorder, to include as a result of asbestos exposure, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs