Citation Nr: 1410628 Decision Date: 03/13/14 Archive Date: 03/20/14 DOCKET NO. 10-19 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lung disability, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1959 to October 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The case was before the Board in June 2011 and was remanded for additional development. In October 2013, the Board requested a medical advisory opinion in this matter from the Veterans Health Administration (VHA). Such opinion was received in December 2013. The VA sent the Veteran a copy of the opinion and advised him in a December 2013 letter that he had 60 days in which to provide additional evidence. See 38 C.F.R. § 20.903 (2013). The Veteran submitted a December 2013 VA outpatient treatment record. The Board finds this is cumulative evidence and, therefore, no prejudice to the Veteran will result from the fact it was not reviewed by the RO. The issue of service connection for a lung disability other than asbestosis is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if action on his part is required. FINDING OF FACT The Veteran is not shown to have a diagnosis of asbestosis. CONCLUSION OF LAW Service connection for asbestosis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant was advised of VA's duties to notify and assist in the development of this claim prior to its initial adjudication. An August 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged notice that was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured and he has been afforded examinations to determine the etiology of his disability. The Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Factual background, Legal criteria and Analysis The Board has reviewed all of the evidence in the appellant's record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs show that in December 1961 he was seen for complaints of nasal congestion; the impression was bronchitis; a chest X-ray shows lung fields were clear. He was seen later that month, when wheezes were still present, and medication was prescribed. He denied shortness of breath and pain or pressure in the chest in an August 1963 report of medical history. His lungs and chest were normal on clinical evaluation, and a chest X-ray was negative, on August 1963 service separation examination. . Service personnel records show the Veteran's duties included aircraft and missile ground equipment repairman, and aerospace ground equipment repairman. Private medical records show the Veteran received a chest X-ray in October 1992. A history of asbestos exposure was noted. The X-ray revealed interstitial opacities, and the findings were said to be consistent with asbestos exposure. In a December 1992 statement, R. L. Koenig, M.D., reported he first saw the Veteran the previous month. The Veteran related he had been employed since 1964, and was exposed to products containing asbestos while working with tradesmen removing asbestos from pipes and boilers, and applying new insulation materials. He stated he was often covered with insulation dust at the end of his work day. The Veteran's complaints included shortness of breath with little exertion, occasional chest pain, frequent cough and an overall difficulty in breathing. A pulmonary function test revealed no impairment of breathing function and no restrictive or obstructive defect. Based on the Veteran's chest X-ray, Dr. Koenig stated the Veteran had pulmonary asbestosis. VA outpatient treatment records show that in February 2002, lung sounds were clear, with normal vesicular breath sounds, without rhonchi, rales or wheezes. When the Veteran was seen in January 2010, the lungs were clear. There were no rales, crackles or wheezes. In May 2010, H.H. related he had worked with the Veteran at a company and had firsthand knowledge of the type of insulation that was used. He stated that the company stopped using asbestos insulation in the early 1970's. He maintained the insulation did not contain asbestos when the Veteran worked for the company. On July 2011 VA respiratory examination, the Veteran reported he was exposed to asbestos from changing brakes on vehicles in the motor pool and shop area. He recalled getting black material on his nose. It was also noted that while he thought he had been exposed to asbestos at his job following service, he was not sure if he was or not. The diagnosis was pulmonary asbestosis, presumptively related to working around asbestos brakes in service. In August 2011 the National Personnel Records Center reported that it had conducted an extensive search of records and was unable to locate pertinent records concerning the Veteran's exposure to asbestos in service. Information from the Air Force indicates that brake and clutch assemblies on military vehicles may contain asbestos and pose a hazard to vehicle maintenance personnel. A VA physician reviewed the Veteran's record in September 2011, and noted Dr. Koenig's opinion that the Veteran has asbestosis. The VA physician stated there was nothing in the STRs to indicate the Veteran had pulmonary asbestosis. He also noted that a CT scan of the chest in September 2011 found no evidence of asbestosis. The physician commented that based on a current chest X-ray the Veteran did not appear to have pulmonary asbestosis. He added that the Veteran's current lung condition was less likely as not related to service or pulmonary asbestosis. He noted there was no evidence that the Veteran had pulmonary asbestosis confirmed by a chest CT, and that nobody other than Dr. Koenig said he had asbestosis. As noted above, in November 2013 the Veteran's record was referred to a VHA physician for review and an opinion regarding whether the Veteran has asbestosis related to in-service exposure. The consulting expert observed the Veteran had exposure to asbestos both during service and as a civilian following service. With respect to the diagnosis of asbestosis, the VA physician noted that Dr. Koenig listed the Veteran's physical complaints and provided a partial examination, but did not mention an examination of the lungs. The expert noted that spirometry did not show evidence of restrictive lung disease (a finding often seen with asbestosis). The VHA physician also summarized the findings of the July 2011 VA examination. While the impression then was "pulmonary asbestosis presumptive related to working around his asbestos brakes his entire military career," the VA physician in November 2013 observed that this appeared to be based on a 1992 chest X-ray; she noted that a 2011 chest X-ray showed the lung fields were clear, contradicting the initial chest X-ray findings and the diagnosis of asbestosis. The VHA expert explained that the diagnosis of asbestosis requires a history of exposure to asbestos with a latency period of 20-30 years from the onset of exposure to the time of presentation, or markers of exposure such as pleural plaques. There should also be definitive evidence of interstitial fibrosis in the absence of other causes of interstitial lung disease. The expert noted that Dr. Koenig's diagnosis in 1992 was based on a history of asbestos exposure, the proper latency period, and a chest X-ray report that could be consistent with asbestosis. She observed that by 2011, there were more data, including a CT scan of the chest, which did not show any evidence of asbestos exposure or interstitial lung disease. She acknowledged that subtle pulmonary fibrosis might not be seen with 5 millimeter cuts, suggesting that a high resolution CT scan should have been done. The VHA expert concluded that it was more likely than not that the Veteran did not have pulmonary asbestosis, as the diagnosis seemed to have been based on one chest X-ray in 1992, and that there was no other evidence of interstitial lung disease. It was further noted that spirometry in 1992, 2010 and 2011 was normal. She stated that most of the clinic notes document a lack of pulmonary symptoms and clear lungs on examination. She added that the cause of the Veteran's symptoms was not apparent and further work-up for dyspnea on exertion might include additional testing. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). There are no laws or regulations that specifically address the adjudication of claims seeking service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the United States Court of Appeals for Veterans Claims (Court) and General Counsel provide guidance in adjudicating these claims. The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. VA Manual at Subsection (h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). 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 IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidence 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 (f). The Board notes that the M21-1 MR provides that 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. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). Based on the evidence presented, and in particular the VHA expert's opinion which the Board finds most probative and persuasive (as it reflects familiarity with the entire record, and includes a thorough explanation of rationale that addresses the opinion to the contrary-explaining reasons for disagreement -and cites to supporting factual data), the Board finds that while the Veteran is reasonably shown to have been exposed to asbestos in service, he does not have a diagnosis of asbestosis. While it was earlier suspected (based on history and some suggestive studies, i.e., X-rays) that he had asbestosis, more recent and more sophisticated studies, including CT scans as well as spirometry, have established otherwise. The Court has noted that Congress specifically limited entitlement to service connection for disease or injury to cases where such resulted in a disability. In the absence of proof of a present disability, there can be no valid claim [of service connection]. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against a finding that the Veteran has asbestosis, he has not presented a valid claim of service connection for such disease. Accordingly, service connection for asbestosis is not warranted. ORDER Service connection for asbestosis is denied. REMAND The Veteran also seeks service connection for a lung disability other than asbestosis. As noted above, the VHA physician concluded in November 2013 that the Veteran did not have pulmonary asbestosis. She added that the cause of his symptoms was not apparent, but that additional work-up for dyspnea on exertion was warranted. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for a VA respiratory examination to determine the nature and etiology of any current lung disability (i.e., other than asbestosis). All appropriate testing, to include a cardiac evaluation, bronchoprovocation testing and cardiopulmonary exercise testing (as recommended by the VHA expert), should be completed. The examiner should: (a) Indicate whether or not the Veteran has a current chronic lung disorder and, if so, identify it by medical diagnosis. (b) As to each chronic lung disability diagnosed provide an opinion whether such at least as likely as not (a 50 percent or higher probability) is related to the Veteran's service. The examiner must explain the rationale for all opinions, citing to supporting factual data. 2. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs