Citation Nr: 1451607 Decision Date: 11/20/14 Archive Date: 11/26/14 DOCKET NO. 09-49 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The appellant served in the Army National Guard from September 1978 to March 1995, which included periods on active duty for training (ACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2010, the appellant presented testimony at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the appellant's claims file. In November 2010 and March 2014, the Board remanded the current issue for further evidentiary development. It has since been returned to the Board for further appellate action. FINDING OF FACT The appellant's chronic obstructive pulmonary disease is not etiologically related to service. CONCLUSION OF LAW The requirements for entitlement to service connection for chronic obstructive pulmonary disease have not been met. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the appellant's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2014). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appellant in this case was provided complete notice of the elements required to show entitlement to service connection, to include the effective date and disability rating elements, by a letter in November 2008. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Regarding the duty to assist, the record reflects that service treatment records (STRs), service personnel records, and all available post-service medical evidence identified by the appellant have been obtained. The appellant has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Acting Veterans Law Judge identified the issue to the appellant, and asked specific questions directed at determining whether the appellant met the criteria for service connection. The appellant volunteered his service history related to his claimed asbestos exposure. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the appellant provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time, and no further action pursuant to Bryant is necessary. The Board also notes that the development requested in the November 2010 and March 2014 remands has been completed. The case was remanded for verification of the appellant's periods of ACDUTRA and INACDUTRA and obtention of any STRs from those time periods, and for a VA examination by a physician, provided ACDUTRA service during May 1985 was verified. The record shows the State Adjutant General was contacted in order to obtain the appellant's ACDUTRA and INACDUTRA dates. Although additional personnel and medical records, including the appellant's record of assignments, were obtained through this request, the exact dates of ACDUTRA and INACDUTRA were not. However, the Board finds that there is no harm to the appellant's claim to proceed with adjudication without further attempts to verify these dates. The STRs for the appellant's service with the National Guard appear to be complete, and the record of assignment appears to indicate that the appellant was, in fact, on ACDUTRA in May 1985, the time period the agency of original jurisdiction (AOJ) was asked to verify for purposes of this claim. Thus, the Board can proceed with adjudication of the appellant's appeal without fear of prejudice to his claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In addition, the appellant was afforded a VA examination by a physician to determine the etiology of his COPD. The Board finds, therefore, that the RO substantially complied with the requirements articulated in the Board's remands. D'Aries v. Peake, 22 Vet. App. 97 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the appellant nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim or has argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of this appeal. Accordingly, the Board will now address the merits of the appellant's claim on appeal. Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that active military, naval, or air service includes any period of active duty for training (ACDUTRA), meaning full-time duty in the Armed Forces performed by reserves for training purposes, during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (c)(1), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Court has held that VA service connection compensation presumptions do not apply with only ACDUTRA or INACDUTRA service. Id. at 477-78. The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under condition other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Regarding the appellant's claimed asbestos exposure, there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims; see VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, subpart ii, 2.C.9 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.2.ii.C.9."). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure; see VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the appellant's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Common materials that may contain asbestos include steam pipes for hearing units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials and thermal insulation. M21-1MR, IV.ii.2.C.9.a. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, IV.ii.2.C.9.d. 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. M21-1MR, IV.ii.2.C.9.e. Some of the major occupations involving exposure to asbestos include mining; milling; working 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 such products as roofing and flooring materials, asbestos and cement sheet and pipe products and military equipment. Exposure to any simple kind of asbestos is unusual except in mines and mills where the raw materials are produced. M21-1MR, IV.ii.2.C.9.f. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1MR, IV.ii.2.C.9.g. When deciding a claim for service connection for a disability resulting from exposure to asbestos, VA must determine whether service records demonstrate 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 above. M21-1MR, IV.ii.2.C.9.h. The Court has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.9.f-g cited above) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141, 145 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Board has reviewed all the evidence in the record. 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 appellant or obtained on his behalf be discussed in detail. Rather, the analysis below focuses 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). The appellant, who is not shown to have active Army service other than active duty for training (ACDUTRA), and who is not currently service-connected for any disability, asserts that he incurred COPD as a result of exposure to asbestos while performing his occupational duties during his periods of ACDUTRA. The appellant's military occupational specialty (MOS) was automotive repairman, and later wheeled vehicle repairer, both of which connote work involving clutch facings and brake linings. However, there is no presumption of asbestos exposure due to work as an automotive repairman, and no measurement regarding how much, if any, asbestos exposure may be incurred over time in that capacity. The Board also notes at the outset that there is no medical evidence of record indicating that the appellant is currently diagnosed with any asbestos-related pulmonary disorder (asbestosis, mesothelioma or other disease associated with asbestos exposure in M21-1MR, IV.ii.2.C.9.b-c). The appellant's STRs reflect that he began reporting breathing complaints during a period of ACDUTRA in April 1985, at which time he presented with a three-day history of symptoms that included coughing. He was diagnosed with bronchitis. A chest x-ray conducted at that time was negative. During a follow-up appointment later that month, the bronchitis was noted to have resolved. In May 1985, the appellant presented with shortness of breath at rest. The care provider prescribed self-care with medication, and told the appellant to force fluids and stop smoking. On a December 1985 medical history report, the appellant stated he was in excellent health, but reported contracting chronic or frequent colds. The medical examiner noted that the appellant contracted upper respiratory infections four to six times per year. On a March 1994 medical history report, the appellant reported a cough for two to three months. The examiner noted coarse rhonchi, and recommended evaluation by a pulmonary specialist. A chest x-ray study conducted at that time revealed clear lung fields bilaterally. In November 1994, the appellant included symptoms of shortness of breath and coughing on a questionnaire prior to undergoing a biopsy of a lump on his neck at a private medical facility. He reported smoking half a pack of cigarettes per day for 15 years. A chest x-ray noted normal lungs. On the accompanying preanesthesia assessment, the care provider noted that the appellant denied respiratory conditions. However, the provider also wrote "occasional coughing" on the document, and checked a box for COPD. In March 1996, the appellant was afforded another chest x-ray, which found no significant abnormalities in the central airways and pleura. X-ray studies conducted in September 1997 and September 1998 were also normal. During a sleep disorder examination in July 2001, the appellant reported smoking approximately one pack of cigarettes per day, and his lung examination revealed diffuse end-expiratory wheezing and decreased breath sounds. A June 2004 x-ray revealed scattered dense nodules in the left lung that the care provider indicated might represent granulomas. In December 2005, an x-ray study diagnosed pulmonary emphysema. A September 2007 a care provider stated that the appellant likely had COPD, based on a chest x-ray that showed flattened diaphragms in the setting of a significant smoking history. In November 2007, the appellant was afforded a pulmonary function test (PFT), which revealed "very mild obstructive ventilatory defect." The appellant was diagnosed with COPD at that time. The appellant was afforded a VA examination in December 2010 in connection with his pending service connection claim. He told the examiner that he felt his breathing problem was related to his exposure to asbestos in service. The examiner noted that the appellant had a 40 pack year smoking history, but that he had given up cigarettes in favor of smoking one cigar per day. A PFT found minimal obstructive lung defect. The VA examiner found no signs of pulmonary restrictive disease, and noted that the appellant's PFT was essentially unchanged since 2007. She diagnosed the appellant with mild COPD and opined that his current condition was not caused by or a result of exposure to asbestos in the National Guard. She noted that there was no evidence that the appellant had a chronic pulmonary problem in service, and that the only respiratory condition addressed in his STRs was bronchitis, which was transient. She also noted that there was no evidence of active treatment or sequelae of the disease at that time, and that the appellant's chest x-rays had been normal throughout the years. She stated that the appellant was a 40 pack year smoker who had only recently quit, and opined that it was his years of tobacco abuse that caused his COPD. The appellant was afforded a second VA examination in May 2014, at which time he described shortness of breath when walking. He denied inhaler use, and indicated he had not been to a pulmonologist in the past 10 years. The appellant stated that he previously smoked half a pack of cigarettes per day, but that he had quit one year ago. A PFT revealed mild obstructive ventilatory defect. The physician who interpreted the PFT stated that, in the setting of airway obstruction, decreased pulmonary diffusing capacity suggested emphysema. After reviewing the evidence, including the PFT, the VA examiner opined that the appellant's respiratory condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner stated that there was no evidence that the appellant had a chronic pulmonary problem while in service, and that there was no diagnostic or empirical evidence of asbestosis. He explained that the appellant was a 20 pack year smoker who had recently quit, that the PFT showed mild obstruction, and that the appellant was not on any medication for his alleged shortness of breath. After review of the record, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection. The appellant has been competently diagnosed with COPD. Accordingly, the first element of service connection-medical evidence of a disability-is met. However, the appellant's STRs contain no diagnosis of COPD or any chronic respiratory condition. Chest x-rays throughout service were normal, and the first confirmed diagnosis of obstructive pulmonary disease appears to have occurred in December 2005, when an x-ray study revealed emphysematous changes. To the extent that the first notation of COPD in the record, made at a private medical facility in 1994, constituted a confirmed diagnosis, there is no indication that the evaluation occurred during a period of ACDUTRA. Moreover, there is no medical evidence establishing a relationship between the appellant's current respiratory diagnosis and service. Indeed, the VA examiners found no evidence of asbestosis, and opined that the appellant's current respiratory condition was most likely related to his extensive smoking history, and not to service. The Board acknowledges that VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza, 7 Vet. App. 498. It has accordingly carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA, his statements during medical treatment, and his testimony before the Board. However, the Board must also consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). The appellant has repeatedly asserted that his COPD was caused by exposure to asbestos during his periods of ACDUTRA. However, COPD is a multi-factorial disorder, and its etiology is not within the competence of a layperson. Jandreau v. Nicholson, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428. It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As the evidence of record does not include a competent medical opinion showing a relationship between the appellant's COPD and service, the Board finds the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for chronic obstructive pulmonary disease is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs