Citation Nr: 1429837 Decision Date: 07/01/14 Archive Date: 07/10/14 DOCKET NO. 05-25 453A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as due to asbestos exposure. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from April 1954 to February 1956. This appeal to the Board of Veterans' Appeals (Board) is from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims of entitlement to service connection for residuals of back and neck injuries, stomach and sinus conditions alleged to be due to a bacterial infection, flat feet, and a respiratory condition purportedly due to asbestos exposure. As support for these claims, the Veteran testified at a videoconference hearing in December 2009 before the undersigned Veterans Law Judge of the Board, the transcript of which is in the electronic portion of the claims file, so of record. The Board denied this claim in a July 2011 decision; however, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court/CAVC). In an April 2013 Memorandum Decision, the CAVC vacated the decision denying this claim and remanded this claim back to the Board for further development and readjudication in compliance with directives specified. The Board resultantly, in January 2014, remanded the claim to the Agency of Original Jurisdiction (AOJ). Specifically, the Board directed a VA compensation examination regarding certain exhibited symptoms having the potential to be attributed to a respiratory condition and then for an etiological opinion if necessary regarding any condition found. Preliminary review of the report of the VA examination performed with these objectives reveals that, at the very least, it was in substantial compliance with the remand directives as the examiner provided the requested diagnosis and then provided a well-reasoned opinion concerning the etiology of this present-day condition, including especially that considered the Veteran's alleged exposure to asbestos while in service as the possible source of this now claimed condition. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board is proceeding with its adjudication of the claim. Also note, however, 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. As he served as a mechanic while on active duty in the military, it is likely the Veteran was exposed to asbestos during his service in that capacity. 2. But even so, there is no competent and credible evidence linking his current chronic obstructive pulmonary disease (COPD) to his service, including especially to that conceded asbestos exposure. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a respiratory disorder, including on the basis of exposure to asbestos during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2013). Here, to this end, the Veteran was provided the required notice and information in a March 2003 letter prior to initially adjudicating his claim in September 2003, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). There also more recently was an additional April 2010 letter following the initial remand of this claim providing notice specifically in the context of a respiratory disorder alleged to be due to asbestos exposure. The Veteran has not alleged any notice deficiency, certainly none that is prejudicial, i.e., more than harmless, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records and providing an examination or medical opinion when necessary to make a decision on the claim, unless there is no reasonable possibility the assistance would help substantiate the claim. Here, to this end, the Veteran's VA records and identified private treatment records have been obtained and associated with his claims file for consideration. He also was provided a VA examination, the report of which contains a description of the history of the disability at issue, documents and considers the relevant medical facts and principles, and provides an opinion regarding the etiology of his claimed respiratory condition. The majority of the Veteran's service treatment records (STRs) could not be found. The National Personnel Records Center (NRPC) provided a negative response to VA's request for his service records file, stating the absence was fire-related and it could not be reconstructed. Thus, further attempts would be futile. All procedures to obtain his missing STRs were correctly followed and there is no basis for any further pursuit. 38 C.F.R. § 3.159(c)(2) and (3). When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision...." Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing STRs. Cromer, 1 Vet. App. at 217-18. The legal standard for proving the claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). Thus, missing records concerning the Veteran's military service, while indeed unfortunate, do not, alone, obviate the need for him to still have evidence supporting his claim by not only establishing he has the claimed disability but also by suggesting a relationship or correlation between the claimed disability and a relevant event, injury or disease during his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). This is the so-called "nexus" requirement to establish the necessary linkage between current disability and service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Thus, VA's duty to assist with respect to obtaining relevant records and an examination thus has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With asbestos-exposure-related claims, in addition to the VCAA, VA must also determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). To this end, the RO or Appeals Management Center (AMC) must determine whether military records contain evidence of asbestos exposure during service, develop whether 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, keeping in mind the latency and exposure information discussed. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). These asbestos-specific procedures were complied with prior to the Board's July 2011 denial of this claim and, in any event, the Board is deciding the element of asbestos exposure in the Veteran's favor since evidence indicating he may have been exposed in service is unavailable on account of his missing and presumed destroyed service treatment and personnel records. Most importantly, though, even with this concession of asbestos exposure during his service as a mechanic, the Board must still deny the claim because there is not the required substantiation of a relationship or correlation between that exposure and his eventual development of a respiratory disorder - namely, COPD. To the contrary, a VA compensation examiner has completely disassociated the COPD from the Veteran's military service, including especially from his presumed exposure to asbestos as a mechanic. II. Standard of Review In deciding this claim, the Board has reviewed all of the relevant evidence in the electronic Veterans Benefits Management System (VBMS) claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Merits of the Claim Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). But in determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Consider also that a Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") With regards to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons based on medical evidence in the record for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21-1, Part VI, 7.21. The Veteran claims that he was exposed to asbestos while working as a mechanic at Cranwich Camp in Brandon, England. Despite his missing STRs, his file does contain the report of his separation examination from February 1956, which lists his lungs and chest as normal. He testified at his hearing that brake pads he had repaired during his service had contained asbestos and that he did not wear protective gear. His service personnel records (SPRs) confirm that his military occupational specialty (MOS) was vehicle repairman. And since working with friction products such as clutch facings and brake linings is typically associated with asbestos exposure, the evidence suggests he was probably exposed to asbestos in service. See M21-1, Part VI, 7.21. Thus, his claim first turns on whether he has a current respiratory disability, and then on whether there is the required link ("nexus") between any such disability and his presumed exposure to asbestos during his service. In 2003, he began complaining of shortness of breath, chest tightness, and wheezing on exertion and reported a post-service occupational history of having worked around dust. As previously mentioned, he was afforded a VA examination in February 2014 to determine if he had a current respiratory condition and then, if confirmed he does, for an opinion regarding its etiology - especially in terms of its posited relationship with his military service. After reviewing the claims file and examining the Veteran, the examiner diagnosed COPD, so there is no disputing the Veteran has a current respiratory condition. But there also has to be attribution of this condition to the Veteran's military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In addressing this additional issue of causation, the examiner recorded a history of the Veteran's condition, which included his work in service as a mechanic and his resulting use of chemicals. The examiner conceded this may have damaged the Veteran's lungs. He also noted the Veteran's inhalation of dust while in service. He further noted the Veteran's symptoms, which he claimed began in service, including an irritated raw airway, a "charley horse" in his chest wall muscles after sneezing, shortness of breath, and wheezing at night during sleep. But equally, the examiner pointed out the Veteran began smoking when he entered the service at 18 years old and did not quit until 20 years later. The examiner concluded that the Veteran had untreated COPD for many years, and that this condition was less likely than not incurred in or caused by the Veteran's service, including from exposure to asbestos (so even accepting that occurred). As rationale, the examiner stated that he believed the COPD was the result of the 20 years of smoking, not instead to any asbestos exposure. He further denied that the Veteran had asbestosis (i.e., a type of respiratory disorder specifically associated with prior exposure to asbestos), as there was insufficient evidence of pulmonary fibrosis in the radiograph of the Veteran's chest. VA law provides that, for claims received by VA after June 9, 1998, a disability or death may not be considered service connected on the basis that it resulted from injury or disease attributable to the claimant's use of tobacco products (smoking) during his or her service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300(a). Thus, after considering the relevant evidence, the Board has determined that the preponderance of it is against the Veteran's claim. COPD is not the type of simple medical condition that is readily amenable to probative (competent and credible) lay comment concerning its diagnosis and etiology. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). And there is no medical evidence linking the Veteran's COPD to his service, including especially to the conceded asbestos exposure. To the contrary, the competent and credible report of the February 2014 VA examiner instead linked the condition to the Veteran's 20-year history of smoking cigarettes. The Board attaches a lot of probative weight to this opinion, as it is well-reasoned and considered the Veteran's contentions and the relevant medical and other evidence of record. As a layman, the Veteran is not competent to provide a probative nexus opinion regarding the etiology of his COPD, again, since it is a complex rather than simple medical condition, including in terms of its potential relation to the asbestos exposure during his service. Moreover, while the Board recognizes that it has a heightened duty to consider the benefit-of-the-doubt doctrine and discuss the reasons or bases for its decision in the absence of his STRs, their mere absence does not obviate the need for him to establish the required etiological relationship between his COPD and his service. See Milostan, 4 Vet. App. 252. So given the absence of any competent and credible medical evidence establishing the "nexus" element of his claim, the preponderance of the evidence is against it, meaning the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the claim must be denied. ORDER The claim of entitlement to service connection for a respiratory disorder, including COPD due to asbestos exposure, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs