Citation Nr: 1415093 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 10-40 687A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for pulmonary fibrosis. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for an upper back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1957 to August 1961. He died in August 2010. The appellant is his surviving spouse and was substituted by the RO in March 2011 to complete the processing of the deceased Veteran's appeal. This case comes before the Board of Veterans Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board has reviewed all the evidence in the appellant's paper claims file and Virtual VA record, which contains an appellate brief not located within the paper claims file. Additional evidence, including a form indicating job titles and their likely level of asbestos exposure, was submitted with the appellate brief; such evidence was received with a waiver of RO consideration. The appellant claimed entitlement to service connection for the cause of the Veteran's death and for burial benefits in November 2010. The record does not show that these issues have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board notes that the appellant's representative asserted that Chronic Obstructive Pulmonary Disease (COPD) manifested during service and contributed to the Veteran's death in a February 2014 appellant's brief (available on Virtual VA). The issues of service connection for a low back disability and an upper back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's pulmonary fibrosis was not manifested in, and is not shown to be related to, his military service, to include as due to asbestos exposure therein. CONCLUSION OF LAW Pulmonary fibrosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) 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). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) regarding the claim for service connection for pulmonary fibrosis was furnished to the Veteran in a March 2009 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the March 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA examination in May 2009. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). In the February 2014 appellant's brief, the appellant's representative noted that the examiner was a VA-contracted physician who was not shown to be a lung specialist. The representative requested the Board seek an opinion from an independent medical expert (IME) to determine whether symptoms noted in service were initial manifestations of the Veteran's pulmonary fibrosis. The May 2009 examination report reflects that the examiner reviewed the Veteran's medical records, recorded his complaints, conducted an appropriate physical examination, and rendered a diagnosis and opinion consistent with the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner stated she could not opine on whether the Veteran's pulmonary condition was due to the military or not without resorting to mere speculation and provided adequate rationale for her inability due to so. The Board finds her reasoning adequate because her report makes clear that she evaluated the "procurable and assembled date" and provided reasoning for her opinion that showed consideration of all pertinent and available medical facts, including the Veteran's statements. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Accordingly, the Board finds it unnecessary to seek the opinion of an IME in this matter. 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). The appellant has not identified any pertinent evidence that remains outstanding regarding the issue of service connection for pulmonary fibrosis. VA's duty to assist is met. Accordingly, the Board will address the merits of the issue. Legal Criteria, Factual Background, and Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Disabilities 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). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 was subsumed verbatim in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). See also VAOPGCPREC 4-00 (Apr. 13, 2000). 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). 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). Finally, the Board notes that a Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a veteran during active service. See 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. VA treatment records and a VA examination report indicate that the Veteran has been diagnosed with pulmonary fibrosis on various occasions between August 2006 and May 2009. In a March 2009 letter, the Veteran asserted he was diagnosed with fibrosis by a private physician in 1996 and was treated for his condition by another private physician in 2005. A current disability is therefore established. The appellant asserts that the Veteran's pulmonary fibrosis is the result of exposure to asbestos in service. It is not in dispute that the Veteran worked as a boilermaker and operator. Based on such service, it may be conceded that he had exposure to asbestos in service. In his January 1957 enlistment report of medical history, the Veteran checked the appropriate box to indicate he had not experienced a shortness of breath, pain or pressure in his chest, or a chronic cough. He noted that he had experienced whooping cough. A January 1957 enlistment examination report indicates the Veteran's lungs were clinically evaluated as normal. The Veteran's service treatment records (STRs) show he complained of a chest cold in February 1957. An X-ray showed an azygous lobe present, but the remaining lung fields were noted to be clear. In April 1958, he complained of a consistent cough that he had experienced for two weeks. An X-ray was negative. An October 1958 chest X-ray was also negative. He complained of a cough and sore throat in December 1958. He was noted to have acute tonsillitis. He was noted to have a cold and cough in January 1960. He complained of a cough that he had been experiencing for three days in November 1960. Acute bronchitis was noted. A follow-up December 1960 note indicates the Veteran seemed to be coughing less, but described experiencing previous episodes of a chronic cough. A wheezing was noted. An X-ray was found to be essentially negative. February 1961 and August 1961 service examination reports indicate his lungs were again clinically evaluated as normal. X-rays of the Veteran's chest were negative. As noted, the Veteran underwent a VA respiratory examination in May 2009. The Veteran asserted he worked in the boiler room for four years in service. He also reported smoking three packs of tobacco per day for 50 years, but indicated he had discontinued use eight years prior to the examination. He continued smoking a pipe. The examiner diagnosed the Veteran with pulmonary fibrosis with an onset date of 1970. She indicated that the she reviewed the claims file, including the Veteran's STRs. The examiner indicated the etiology of the pulmonary fibrosis was tobacco use, but that she could not resolve the issue of whether it was due to the military or not without resorting to mere speculation because of the tobacco use. The examiner noted that "anyone who smokes [three packs per day for 50 years] will have lung disease and will need [oxygen]." In July 2009, the Veteran submitted an article from the American Lung Association's web site. The article indicated occupational exposure to asbestos "can cause pulmonary fibrosis." The Board finds that the evidence of record does not support a finding of service connection for pulmonary fibrosis. In this case, the VA examiner clearly indicated that due to the Veteran's longstanding and frequent tobacco use, it could not be determined that his pulmonary fibrosis could be attributed to military service and asbestos exposure therein. As a result, the May 2009 opinion does not signal the need for additional information, but rather demonstrates that any medical statement attempting to link the Veteran's pulmonary fibrosis to service would be the result of pure speculation as such a relationship cannot be determined from the currently available record. Furthermore, the examiner provided an onset date of 1970. It's not clear whether the Veteran reported the onset date or the examiner opined as to the date, but it is a time period after the Veteran had been discharged. There are no other competent opinions of record in this matter. To the extent that the Veteran contended that his pulmonary fibrosis was due to service, his statements were not competent evidence and cannot be accepted as such by the Board. The evidence of record does not indicate that the Veteran had the necessary medical training or experience to comment on complicated medial questions such as the etiology of pulmonary fibrosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the appellant did not submit statements contending the Veteran's pulmonary fibrosis was due to service, but the evidence also does not indicate that she has medical training or experience to provide competent medical opinions. Furthermore, while the article from the American Lung Association's web site indicates occupational exposure can cause pulmonary fibrosis, in no way does it relate the Veteran's pulmonary fibrosis to his military service and exposure to asbestos. Furthermore, the Board has conceded that the Veteran was exposed to asbestos in service. Neither the Veteran nor the appellant submitted a competent medical statement relating the Veteran's pulmonary fibrosis to his military service. In the absence of any persuasive and probative evidence that the Veteran's pulmonary fibrosis was etiologically related to active service, service connection is not warranted, and the claim must be denied. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the Veteran's pulmonary fibrosis. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, and the appeal is denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for pulmonary fibrosis is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the issues of service connection for a low back disability and an upper back disability. In July 2009, the Veteran submitted a treatment note dated May 1994 indicating that Dr. John W. Collins, Jr. of Orthopedic Associates of Kansas City Inc. treated the Veteran for a herniated lumbar disc and cervical disc syndrome. These treatment records have not been associated with the claims file. VA treatment records show the Veteran complained of back pain in August 2006. He was assessed with back pain. The Veteran was provided a VA bone examination of his leg in March 2009. The report indicates that the Veteran reported experiencing difficulty walking because of low back problems. The Veteran's STRs show he complained of back trouble in February 1957. He was noted to have a sore back and lumbar spasms. In July 1957, a 200-pound load of plaster contained in two barrels fell on the Veteran. He received injuries to his forehead and left leg. He complained of pain in his neck, shoulder, head and leg. The Veteran reported experiencing back pain secondary to the leg injury he sustained in service during a June 1962 VA examination. In a March 2009 letter, the appellant asserted that the Veteran began having back trouble shortly after their marriage in April 1962. She said back pain kept him from getting out of a car or bed many times. She said the pain also prevented him from turning his neck. She said physical therapy helped him to be able to continue working, but didn't fix his back. She did not specify where the Veteran received physical therapy. Therefore, the appellant should be afforded a VA opinion to determine the nature and etiology of any back disabilities the Veteran experienced. Additionally, the Board finds Dr. Collins' treatment records as well as any outstanding private treatment records should be associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request her to identify all private medical providers from whom the Veteran sought treatment for any back disabilities and to complete and provide any authorizations necessary for VA to obtain all identified treatment records for each medical treatment provider identified (specifically from Dr. John W. Collins, Jr.). After securing the necessary authorization forms, attempt to obtain all identified pertinent medical records. If any records sought are unavailable, the reason for their unavailability must be noted for the record. 2. Then, arrange for a VA opinion regarding the nature and likely etiology of any low back and upper back disabilities. The examiner must review the Veteran's claims file. Based on the record, the examiner should provide responses to the following: (a) Identify (by medical diagnosis) all low back disability(ies) found in the record (to include the May 1994 diagnosis of herniated lumbar disc syndrome); and (b) As to each diagnosed low back disability(ies), specifically indicate whether it is at least as likely as not (a 50% or better probability) that such was incurred in service/is related to any reported in-service back complaints (to specifically include the reported February 1957 complaints of back pain and noted lumbar spasms). (c) Is it at least as likely as not (50 percent or better probability) that each diagnosed low back disability(ies) was proximately due to the Veteran's service-connected residuals, fracture midshaft, left fibula (left leg disability)? (d) Is it at least as likely as not (a 50% or higher degree of probability) that that each diagnosed low back disability(ies) was aggravated by the Veteran's service-connected left leg disability? Aggravation is an increase in severity beyond the natural progress of the disorder. If the opinion is that any low back disability was not caused by, but was aggravated by the service-connected left leg disability, the examiner should specify, to the extent possible, the degree of disability that is due to such aggravation. (e) Identify (by medical diagnosis) all upper back disability(ies) found in the record (to include the May 1994 diagnosis of cervical disc syndrome); and (f) As to each diagnosed upper back disability(ies), specifically indicate whether it is at least as likely as not (a 50% or better probability) that such was incurred in service/is related to any reported in-service back complaints (to specifically include the reported February 1957 complaints of back pain and July 1957 complaint of neck pain). The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issues of service connection for a low back disability and for an upper back disability. If any benefit sought is not granted, the appellant and her representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs