Citation Nr: 1414912 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 07-124 11 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for interstitial lung disease, to include pulmonary nodules and pleural plaque, as secondary to asbestos exposure. 2. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD), as secondary to asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from May 1963 to May 1964. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. At the outset, the Board acknowledges that in April 2008, the Veteran was afforded a Travel Board hearing before an Acting Veterans Law Judge. 38 U.S.C.A. § 7101 (c) (West 2002 & Supp. 2013). Thereafter, while development in the appeal was still pending, the Acting Veterans Law retired from the Board. A Veterans Law Judge or Acting Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). Accordingly, the Veteran was notified in a December 2011 letter of his right to appear at a hearing before another Veterans Law Judge who would make a decision on his appeal. In a December 2011 statement, the Veteran indicated that he did not wish to appear at another hearing, and to consider his case on the evidence of record. Therefore, the Board considers him to have waived his right to an additional hearing. 38 C.F.R. § 20.717 (2013). In January 2009, September 2010, and August 2012, the Board remanded the appeal for further evidentiary development. The Board now finds that there has been substantial compliance its prior remand directives such that appellate review may proceed. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (finding that an additional remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the prior remand instructions met with substantial compliance), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As a final introductory matter, the Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claims on appeal. These records have been reviewed and considered by the Board. FINDINGS OF FACT 1. In the October 2011 Supplemental Statement of the Case, VA conceded that the Veteran was exposed to asbestos while serving aboard the USS Lowry (DD-770) for approximately five weeks due to the use of asbestos insulation in a ship of that age. 2. The Board resolves reasonable doubt in the Veteran's favor by finding that his interstitial lung disease, to include pulmonary nodules and pleural plaque, are etiologically related to the reported in-service exposure to asbestos. 3. There is no competent and probative evidence that the Veteran has any other current lung disorder, including COPD, which is etiologically related to active service, to include the reported exposure to asbestos. CONCLUSIONS OF LAW 1. The criteria for service connection for interstitial lung disease, to include pulmonary nodules and pleural plaque, as secondary to asbestos exposure, have been met. 38 U.S.C.A. §§ 1131, 1112 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a separate lung disorder, to include COPD, as secondary to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1131, 1112 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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 notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in October 2005 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. An October 2010 letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although this letter was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the October 2011 and April 2013 supplemental statement of the cases (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claims and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits, such as obtaining the Veteran's service, VA, and private treatment records, and affording him VA examinations in connection with his claims in November 2010 and November 2012. Significantly, the Veteran has not identified, and the record has not otherwise revealed, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Additionally, the Veteran submitted an April 2013 Expedited Processing Waiver Form, which notes that the Veteran did not have any additional evidence regarding the claims on appeal. The Board thus concludes that there are no additional records outstanding with respect to these claims. Consequently, the duty to notify and assist has been satisfied as to the claims now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection The Veteran contends that he is entitled to service connection for a lung condition. He attributes his lung condition to in-service exposure to asbestos. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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. VA has, however, 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. 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 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 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 (f). In terms of present disability, the Board notes that private treatment records and the November 2012 VA examination report confirm that the Veteran has diagnoses of interstitial lung disease, to include bilateral pulmonary nodules and pleural plaques, and COPD. As such, the evidence demonstrates the existence of multiple current lung disorders, meeting the first requirement for the establishment of service connection. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran, in written statements and testimony before the Board, contends that he developed his current lung disorders as a result of in-service asbestos exposure. Specifically, he contends that while aboard the USS Lowry (DD-770) from February 8, 1964 and March 18, 1964, he was exposed to asbestos. He states that his exposure occurred both in relation to his service duties and while in his bunk. Additionally, at an April 2008 hearing, the Veteran testified that he was involved in the re-welding process of the ship's piping system, which included removing the coatings and fiber around the pipes so they could be welded. He recalled that when they made cuts into the pipe, it was like a "dust storm," and this dust-like substance would be all over him. The Veteran further reported that pipes ran along the top of his bunk and when he would touch the pipes, a substance would flake off into his bed and on his pillow. Significantly, the Veteran has declined to identify any exposure to asbestos in the course of his civilian occupation as a school teacher or in other aspects of his life outside the Navy. Moreover, in the October 2011 SSOC, VA conceded that the Veteran was exposed to asbestos while serving aboard the USS Lowry (DD-770) for approximately five weeks due to the use of asbestos insulation in a ship of that age. In considering in-service incurrence, the Board has considered that the Veteran's service treatment records contain no complaints, treatment, history or findings consistent with a chronic lung disorder. Post-service medical records contain a September 2005 clinical treatment note showing a finding of mild to moderate COPD, along with a history of tobacco smoke, 100 pack-years. In a September 2005 private radiological consultation report, the Veteran was found to have old granulomatous disease and non-calcified pleural plaques, which the clinician indicated may represent prior exposure to asbestos. That same month, he was noted to have pleural plaques that were most likely due to previous asbestos exposure. The clinician also noted that the Veteran's only exposure to asbestos was during active service. Again in February 2006, the same physician indicated that the Veteran was under his care for chronic COPD due to previous asbestos exposure. A February 2006 CT scan of the chest revealed, inter alia, bilateral pulmonary nodules, calcified granulomas and non-calcified, bilateral pleural plaques. In a March 2007 letter from a VA physician, the Veteran was noted to have incurred in-service exposure to asbestos through direct contact with asbestos-lined pipes. At that time, the Veteran was also found to experience dyspnea upon exertion and a chronic cough. In April 2007, the Veteran underwent another CT scan of the chest. He was found to have stable, non-calcified pleural plaques and scattered non-calcified pulmonary nodules. In a June 2010 statement, the Veteran's private pulmonary physician, Dr. MJH, reported that the Veteran was exposed to asbestos in service. That physician also indicated that he was treating the Veteran for asbestos with pulmonary involvement. In a subsequent statement in October 2010, Dr. MJH indicated that he was treating the Veteran due to a history of esophageal cancer, tobacco use, and asbestos exposure. Dr. MJH then stated that, by the Veteran's history and radiographic studies, it appeared that he had been exposed to asbestos in the past, as he had areas of subtle fibrosis and some pleural calcification. The Veteran was afforded a VA examination in November 2010. He reported onset of his pulmonary condition in 2005. Pulmonary function tests revealed moderate ventilator defect with moderate airflow limitation, not improved by combination of inhaled bronchilators (Albuterol and Ipratropium) during the study. Lung volumes were normal. There was mildly reduced transfer factor for carbon monoxide. Arterial gases at rest on room air revealed normal oxygen tension: 73mmHg. Based on these findings and a review of the medical evidence in the claims file, the examiner determined that there was no objective evidence of pulmonary asbestosis. The examiner diagnosed COPD and lung abscess that was treated and resolved. The examiner opined that the Veteran's lung disorder was less likely as not caused by or a result of asbestos exposure. In this regard, the examiner explained that there were no lung issues during active duty and that the Veteran's service asbestos exposure had not been confirmed. Additionally, the examiner noted that pulmonary findings were not consistent with a diagnosis of pulmonary asbestosis and that a recent chest scan had failed to show a diagnostic impression of pulmonary asbestosis. Instead, the pulmonary inflammatory findings were found to be related to the Veteran's history of chronic smoking, esophageal cancer status post-surgery with GERD, and recent abscess condition. Notwithstanding the above findings, the Board considers it significant that, as previously noted, VA has already conceded minimal exposure to asbestos during service. Moreover, the Board finds that the November 2010 VA examiner made a critical evidentiary omission by declining to address the medical reports that associate the Veteran's pulmonary diagnosis and underlying symptoms with that conceded exposure. Accordingly, the Board considers that examiner's report to be an insufficient evidentiary basis upon which to promulgate a decision in this case. See Nieves-Rodriguez, 22 Vet. App. at 301 (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Fortunately, the record includes another VA examination report, dated in November 2012. In that report, the examining VA clinician has diagnosed the Veteran with an interstitial lung disease, to include pulmonary asbestosis, as well as with COPD. That VA examiner has also opined that, based upon a physical evaluation and review of the claims file, the Veteran's "claimed condition [is] at least as likely as not incurred in or cause by the claimed in-service injury, event, or illness." As a rationale for this positive nexus opinion, the November 2012 VA examiner has noted that Veteran's bilateral pulmonary nodules, revealed on the October 2006 CT chest scan, and his pleural plaques, disclosed on the 2005 CT chest scan, are at least as likely as not due to asbestos exposure because these are known findings in imaging studies of known pulmonary asbestosis per review of the medical literature. These were found on the Veteran's CT scan of the chest in 2005. Additionally, the November 2012 VA examiner has noted that evidence of pulmonary asbestosis does not show until 10 to 20 years later; it has no acute manifestations. While thus linking the Veteran's interstitial lung disease to his in-service asbestos exposure, however, the November 2012 VA examiner has reached a different conclusion regarding the etiology of the other lung disorder currently diagnosed. Indeed, that examiner has opined that the Veteran's diagnosis of COPD is due to his heavy smoking history, chronic cough, and dyspnea on moderate exertion, and is not etiologically related to any in-service asbestos exposure. In support of this finding, the examiner has relied on medical literature and a review of the pertinent evidence of record, both clinical and lay. The November 2012 VA examination opinion is afforded more probative value than the opinion rendered by the November 2010 VA examiner because the expert considered all pertinent and relevant facts related to the Veteran's reported exposure, or non-exposure, prior to, during, and after military service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000)(a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Most significantly, the November 2012 VA examiner stated that it was at least as likely as not that the Veteran's pulmonary nodules noted in the October 2006 CT chest scan and pleural plaques noted in 2005 CT chest scan were at least as likely as not due to asbestos exposure because these are known findings in imaging studies of known pulmonary asbestosis per review of the medical literature. Additionally, in a September 2005 private radiological consultation report, the Veteran was found to have old granulomatous disease and non-calcified pleural plaques, which the clinician indicated may represent prior exposure to asbestos. Therefore, the Board resolves reasonable doubt in the Veteran's favor by finding that service connection for interstitial lung disease, to include pulmonary nodules and pleural plaque, is warranted as etiologically related to the reported in-service exposure to asbestos. 38 C.F.R. §§ 3.102, 3.303. Conversely, the Board finds that service connection is not warranted for the Veteran's currently diagnosed COPD. This is because the November 2012 VA examiner determined that it was the Veteran's heavy smoking history, chronic cough, and dyspnea on moderate exertion that contributed to the COPD based on medical literature as opposed to his in-service exposure to asbestos. The Board considers this examiner's opinion to be highly probative for the reasons outlined above. See Prejean, 13 Vet. App. at 448-9. Moreover, while cognizant that the private physician for the Veteran has reached a different conclusion concerning the etiology of his COPD - opining that this disease is due to in-service asbestos exposure - no rationale has been offered for that February 2006 finding. As such, it is insufficient to refute the countervailing opinion offered by the November 2012 VA examiner. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Similarly insufficient are the Veteran's own statements regarding the in-service onset of his COPD. While competent to opine on matters that lie within the realm of common medical knowledge -- see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) - such matters do not include the etiology of his COPD, which requires clinical expertise to resolve. See Jandreau v Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (noting that "sometimes the lay person 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"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (noting that a lay claimant is not competent to provide evidence as to complex medical questions). As such, the Board may not rely on the Veteran's unsubstantiated assertions to establish a nexus between his COPD and in-service asbestos exposure. See Boggs v. West, 11 Vet. App. 334 (1998); Black v. Brown, 10 Vet. App. 279, 284 (1997) (noting the general importance of an examiner's knowledge and skill in analyzing the medical data). Nor may the Board exercise its own independent judgment to determine that such a link exists when an expert clinician - i.e., the November 2012 VA examiner-- has concluded otherwise. See Chotta v. Peake, 22 Vet. App, 80, 86 (2008) (holding that "the Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment.") (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). In the absence of any competent and probative evidence that establishes an etiological relationship between the Veteran's COPD and active service, to include the reported exposure to asbestos, service connection is not warranted for COPD and the claim is denied. 38 C.F.R. § 3.303. ORDER Service connection for interstitial lung disease, to include pulmonary nodules and pleural plaque, as secondary to asbestos exposure is granted. Service connection for a lung disorder, to include COPD, as secondary to asbestos exposure, is denied. ____________________________________________ E. WOODWARD DEUTSCH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs