Citation Nr: 1424708 Decision Date: 06/02/14 Archive Date: 06/16/14 DOCKET NO. 14-06 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as progressive loss of lung function and proper pulmonary lung circulation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1949 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During service, the Veteran was exposed to asbestos and other hazardous chemicals such as zinc dust and lead paint while performing his duties as an engineer and fireman apprentice in the Navy. 2. Current COPD was first manifested many years after service, and is not causally or etiologically related to service, to include in-service exposure to asbestos. 3. COPD is attributable to a history of smoking tobacco for twenty years. 4. The Veteran did not use tobacco smoking as a means to self-treat service-connected PTSD symptoms. 5. Service connection is precluded for disability due to the use of tobacco products during active service. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C.A. §§ 1103, 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.300, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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). 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the January 2012 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran of what the evidence must show to establish service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further informed the Veteran how VA determined the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. Also, the Veteran underwent a VA medical examination in connection with the appeal in June 2012. A supplemental VA medical opinion was obtained in August 2012 from a VA medical reviewer. Collectively, the VA medical examiner and VA medical reviewer provided the medical opinions based on an accurate medical history provided by the Veteran and review of the record, and considered the Veteran's complaints and reports of limitations as it related to his current symptomatology and its effects on his daily life. The VA medical examiner also performed a thorough evaluation of the Veteran, including pulmonary function tests and chest x-ray. In consideration thereof, the Board finds that, collectively, the VA medical examiner and VA medical reviewer had adequate facts and data regarding the history and current severity of the Veteran's disability when rendering the medical opinions. The collective VA medical opinions were also supported by adequate rationale. In an August 2012 letter, the Veteran requested to be provided with another VA medical examination by a pulmonologist on the basis that the June 2012 VA medical examination was inadequate; however, the evidence does not show that COPD presents such a complex disability picture that a VA medical opinion from a physician who specializes in the treatment of respiratory diseases to address the medical question of whether a nexus relationship between COPD and service exists is warranted in this case. The June 2012 VA medical examiner is trained as an advanced practice registered nurse. The August 2012 VA medical reviewer is trained as an advanced nurse practitioner. Both have the requisite medical expertise to provide a competent medical opinion on the question of whether COPD was caused or etiologically related to service, to include asbestos and hazardous exposure therein. The June 2012 VA medical examiner and August 2012 VA medical reviewer provided sound rationale for the medical opinion based on consideration of the particular facts presented in this case and medical principles. The Veteran has not argued that there were relevant facts that were not considered by the June 2012 VA medical examiner or August 2012 VA medical reviewer. For these reasons, the Board finds that there is no indication that the collective VA medical opinions are inadequate; therefore, no further medical examination or medical opinion is needed in this case. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). COPD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided 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 were later included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (M21-1). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000. The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in manufacturing and servicing of friction products such as clutch facings and brake linings, and other occupations. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. 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 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. 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. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2005); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Service Connection Analysis The Veteran contends that current COPD was caused by exposure to asbestos and/or other hazardous chemicals such as lead paint and zinc dust during his naval service. He also contends that COPD was caused by exposure to secondhand tobacco smoke while in confined quarters during naval service. He further asserts that he self-treated symptoms of service-connected posttraumatic stress disorder (PTSD) with tobacco use, which caused COPD. He does not contend, and the evidence does not show, any other basis for a possible nexus relationship between service-connected PTSD and COPD, on either a causation or aggravation basis. After review of all the lay and medical evidence of record, the Board finds that the Veteran was exposed to asbestos and hazardous chemicals such as zinc dust and lead paint (i.e., there was a respiratory "injury") during service. Because the DD Form 214 and service personnel records show that the Veteran served as an engineer, diesel engineman, or a fireman apprentice while stationed aboard several naval ships, and his military duties would likely have required the type of work associated with an increased risk for exposure to asbestos, the Board finds that the Veteran was exposed to asbestos during active service. As the Veteran's military duties likely exposed him to various hazardous chemicals, although there is no documentation of such exposure, resolving reasonable doubt in favor of the Veteran, the Board also finds that the Veteran was exposed to hazardous chemicals such as zinc dust and lead paint during service. The Board next finds that the weight of the evidence is against a finding that COPD was manifested during service, to include symptoms related thereto. The service treatment records, which are complete, are absent of any complaints of, findings of, or treatment for a respiratory disease during service, including COPD. Also, at the April 1953 service separation examination, the lungs and chest were clinically evaluated as normal, and the chest x-ray was negative. Because the lungs and chest were evaluated at the time of service separation, the Board finds that COPD is a condition that would have ordinarily been recorded during service; therefore, the service treatment records, which were generated contemporaneous to service and are likely to reflect accurately the Veteran's physical condition, and are complete, are of significant probative value and provide evidence against a finding of COPD symptoms during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board further finds that the weight of the evidence is against finding that COPD, which first manifested many years after service separation, is otherwise causally or etiologically related to service. The earliest diagnosis of COPD in the record is shown in July 2009, 56 years after service separation. VA treatment records dated from 2001 to 2009 show that the Veteran repeatedly denied having any respiratory symptoms and did not report having been diagnosed with COPD. The absence of evidence of respiratory complaint or diagnosis for more than five decades after service weighs against a finding of service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Also, the June 2012 VA medical examiner opined that COPD was less likely than not (less than 50 percent probability) incurred in or caused by service. The June 2012 VA medical examiner reasoned that the Veteran's medical records indicated a history of prior smoking, and the chest x-ray did not show evidence of asbestosis. Citing the medical database "UpToDate," the June 2012 VA medical examiner noted that pleural plaques are deposits of hyalinized collagen fibers in the parietal pleura, are indicative of asbestos exposure, and typically become visible twenty or more years after the inhalation of asbestos fibers, although latency periods of less than ten years have been observed. The June 2012 VA medical examiner further commented that asbestosis pulmonary function tests (PFTs) are typically restrictive, not obstructive as was the case for the Veteran. In an August 2012 VA addendum report, a VA medical reviewer opined that it was also less likely as not that the Veteran's exposures in the military to such hazards as lead paint and zinc dust would have caused COPD. The August 2012 VA medical reviewer explained that it was much more likely that the Veteran's history of cigarette smoking would have caused COPD. In support of the medical opinion, the August 2012 VA medical reviewer explained that, at the Veteran's first visit to the Kansas City VAMC in 2001, he reported a 20 pack per year history of smoking cigarettes. The August 2012 VA medical reviewer also noted that the PFTs showed severe COPD with good response to the bronchodilator, which was consistent with his smoking history and of non-compliance with treatment for COPD. Because the June 2012 VA medical examiner and August 2012 VA medical reviewer had adequate facts and data on which to base the medical opinions, and provided sound rationale for the medical opinions, the Board finds that the VA medical opinions are of significant probative value. In February 2012, the Veteran's son, who reported training as a military physician in occupational medicine, provided a positive medical opinion linking the Veteran's COPD to asbestos exposure during service; however, the Board finds that it is of lesser probative value than the June 2012 VA medical opinion and August 2012 VA supplemental opinion for the following reasons. First, after noting that there was difficulty detecting underlying asbestos damage to the lungs due to the severity of COPD, the physician did not provide explanation as to why he believed that the COPD was related to asbestos exposure during service. The physician only generally noted the Veteran's exposure to asbestos during service and that asbestos dust was harmful to the lungs. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). Conversely, when providing the negative medical opinion discussed above, the June 2012 VA medical examiner discussed the Veteran's chest x-ray findings, as well as the PFT results, noting that the clinical findings were not consistent with a respiratory disability caused by asbestos exposure. Second, the physician used speculative terminology (i.e., "could") when providing the medical opinion, suggesting only a possibility of such relationship rather than one of probability. On the question of whether the Veteran's history of cigarette smoking was a method of self-treatment for the service-connected PTSD, the Board notes that the argument was first raised in the April 2014 Appellant's Brief. During the course of this appeal (prior to the submission of the Appellant's Brief), the Veteran repeatedly denied a history of tobacco use and argued that he was only exposed to secondhand smoke during naval service. Many years before filing the current disability claim with VA, however, the Veteran more credibly reported during the course of medical treatment a twenty year history of cigarette smoking that began approximately in 1950 and made no mention of exposure to secondhand smoke during service. See e.g., September 2001 VA primary care note (reporting that he quit smoking in the l970's or 1980's and had previously smoked one pack per day for twenty years); but see handwritten comments on a copy of the January 2012 notice letter submitted in February 2012 (describing himself as a "non-smoker" and noting that he was exposed to second hand smoke from officers and crew members in confined spaces during service); January 2014 VA orthopedic surgery consultation note (denying tobacco use and reporting his belief that COPD came from asbestos exposure and secondhand smoke during naval service). The Veteran has not mentioned self-treating PTSD symptoms by smoking cigarettes to any medical professional, including the April 2012 VA PTSD examiner. The first and only mention of cigarette smoking as a method to self-treat PTSD was in the Appellant's Brief. Because the Veteran has provided inconsistent statements regarding his smoking history, and has not reported that he used cigarette smoking to self-treat PTSD symptoms during the course of any medical evaluation, including the April 2012 PTSD examination, the Board does not find the account of tobacco use as a method of self-treating PTSD to be credible; therefore, it is of no probative value. Similarly, because the Veteran reported a twenty year smoking history for many years until filing the current VA disability claim without mention of exposure to secondhand smoke during service, the Board does not find the report of exposure to secondhand smoke during service to be credible. In this case, a VA medical opinion was not obtained addressing whether the Veteran's twenty-year smoking history was a method to self-treat PTSD symptoms, or whether secondhand smoke during service caused COPD because such an opinion would be based on the inaccurate factual premise of self-treatment of PTSD symptoms through tobacco use or exposure to secondhand smoke during service, and, therefore, of no probative value. See generally Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). To the extent that the Veteran's tobacco smoking may have begun during service (i.e., approximately in the 1950's), for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. §§ 1103(a), 1110, 1131. The Veteran filed the current claim in 2012; therefore, this assertion is against the claim for service connection as it suggests a nonservice-related etiology for COPD. Although the Veteran has asserted that COPD is causally related to service, he is a lay person and does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of his COPD. The etiology of the Veteran's COPD is a complex medical etiological question dealing with the origin and progression of the respiratory system, and COPD is a disorder diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to relate respiratory symptoms that he experienced at any time, he is not competent to opine on whether there is a link between COPD, symptoms of which were manifested many years after service, and active service, including asbestos exposure or exposure to other hazardous chemicals during service, because such a medical opinion requires specific medical knowledge and training. For these reasons, the Veteran's unsupported lay opinion is of no probative value. Thus, the weight of the evidence is against a finding that COPD was incurred in or was otherwise caused by active service, or was caused or aggravated by service-connected PTSD. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for COPD and, consequently, the appeal must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for COPD is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs