Citation Nr: 1455144 Decision Date: 12/15/14 Archive Date: 12/24/14 DOCKET NO. 10-02 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran's claim was remanded in September 2012 for a VA examination and again in April 2014 to obtain an addendum opinion. The addendum was requested specifically to provide an opinion regarding the etiology of the Veteran's COPD. A review of the record shows such an opinion has been associated with the claims file. As a result, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). As noted in previous Board decisions, the Veteran's requested hearing before a Veterans Law Judge was initially postponed, and the Veteran later withdrew his hearing request. As a result, adjudication may continue. See 38 C.F.R. § 20.702(e)(2014). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's COPD did not begin during or is otherwise caused by active service, to include any asbestos exposure therein. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a)(2014). "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 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)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he was exposed to asbestos and chemicals during service and that such exposure caused his COPD. The Veteran was diagnosed with COPD within VA examination reports and treatment records from Elkin Pediatric and Adult Medicine. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. However, there is no specific statutory guidance with regard to asbestos-related claims, and the Secretary has not promulgated any regulations in regard to such claims. VA has issued a circular on asbestos-related diseases. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular are included in a VA Adjudication Procedure Manual, M21-1MR, Part IV. ii.2.C.9 (Dec. 13, 2005) ("M21-1"). As to the M21-1, it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (see M21-1, Part III, par. 5.13(b) (October 3, 1997); M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure (Id. ); and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (see M21-1, Part VI, par. 7.21(d)(1) (October 3, 1997)). In this regard, the M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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, Part VI, par. 7.21(a)(1) and (2). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, Part VI, par. 7.21(b)(1). Next, the M21-1 provides the following medical guidance: in order for an appellant to have a clinical diagnosis of asbestosis the record must show a history of exposure and radiographic evidence of parenchymal lung disease (see M21-1, Part VI, par. 7.21(c)); the latent period for asbestosis varies from 10 to 45 or more years between first exposure and development of disease (see M21-1, Part VI, par. 7.21(b)(2)); and exposure to asbestos may cause disease later on even when the exposure was brief (as little as a month or two) or indirect (bystander disease). Id. However, the United States Court of Appeals for Veterans Claims (Court) has held that the M21-1 does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the M21-1 listed as having higher incidents of asbestos exposure. Dyment v. West, 13 Vet. App. 141, 145 (1999); see also Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Veteran has not provided any specific incident in which he was exposed to asbestos. The Veteran's DD-214 lists his military occupational specialty (MOS) as a store keeper, which is not among the occupations identified as an occupation involving with higher risk of asbestos exposure. None of the Veteran's reported duties suggest asbestos exposure in service, and his service personnel records do not otherwise reflect that he engaged in any duties that would have exposed him to asbestos. Furthermore, service treatment records do not document any complaints, treatment, or diagnoses involving asbestos in any way, and no respiratory abnormalities were found at the February 1981 separation examination. Indeed, a chest x-ray was within normal limits. Despite such a finding, the Board acknowledges the May 2008 letter from "Dr. S.W." of Elkin Pediatric and Adult Medicine that identifies a diagnosis of COPD as "severe - history of exposure to asbestos." The letter also documents exposure to multiple chemicals. Even if such a letter is liberally construed as reflecting a relationship between the Veteran's COPD and any history of asbestos or chemical exposure, the physician did not specify that the exposure occurred during service and failed to provide any rationale for such an opinion. Accordingly, the May 2008 letter has limited probative value in terms of establishing exposure to asbestos during service or supporting a relationship between the Veteran's current COPD and an in-service occurrence. See Neives-Rodriguuez v. Peake, 22 Vet. App. 295, 304 (2008) (the most of the probative value of a medical opinion comes from the rationale that the examiner provided in support of his/her medical opinion). For these reasons, the Board does not find that the Veteran was exposed to asbestos in service. However, in addition to claimed asbestos exposure, the Board has also considered the Veteran's service connection claim on a direct basis with regard to alleged chemical exposure and any other in-service occurrence of COPD. First, service treatment records do not contain any documentation of chemical exposure, and the Veteran has not identified a specific chemical spill. However, the Veteran was treated for upper respiratory infections during service. In February 1978, the examiner noted the Veteran's chest sounds were clear, and there was no cervical node swelling. In April 1978, the Veteran was provided Sudafed and advised to hydrate. In December 1978, the Veteran was advised to decrease smoking. In April 1979, he was again provided medication. The Veteran was also treated for bronchitis in May 1979. He was advised to decrease smoking and given aspirin, Sudafed, and liquids. December 1979 records reflect treatment for sinusitis; the Veteran's chest, however, was described as clear. As stated above, the Veteran's February 1981 separation examination shows his lungs and chest were found to be clinically normal; a chest x-ray was within normal limits. The October 2013 examiner noted that the Veteran's treatment for upper respiratory infection but found that the Veteran did not have a chronic pulmonary condition in the Navy. Because the examiner did not provide an opinion as to presence of a possible nexus between the Veteran's current COPD and active service, however, an addendum opinion was obtained in June 2014. The June 2014 examiner opined that the Veteran's current COPD is less likely than not due to his active service. The examiner acknowledged the May 2008 letter from Dr. S.W. but indicated there was no evidence of an incipient pulmonary condition during military service that could be a precursor to the Veteran's severe COPD, oxygen dependent, of several years. Indeed, the examiner noted there was no evidence of COPD during military service. However, the examiner indicated there were multiple documentations of cigarette use and evidence that the Veteran was advised to quit, which he did not do. The examiner concluded that the Veteran's smoking was the most likely cause of his COPD. The VA examiner based the aforementioned conclusions on a review of the claims file as well as a review of the Veteran's documented and reported history. The examiner provided a conclusion with a supportive rationale, and the June 2014 VA medical opinion is therefore probative. See Nieves -Rodriguez, 22 Vet. App. at 295. As for the Veteran's own lay assertions as to the etiology of his current COPD, the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, identifying a nexus to a persistent disability involves a complex medical issue that the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that a preponderance of the evidence is against finding a nexus between currently diagnosed COPD and the Veteran's military service, to include any in-service exposure to asbestos or chemicals. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. Accordingly, entitlement to service connection for COPD is not warranted. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by a June 2008 letter to the Veteran. Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes service treatment records, personnel records, VA treatment records, private treatment records, lay statements, and VA examinations and opinions. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Here, the examiners considered the Veteran's reported and documented history in rendering their conclusions. Moreover, the Veteran has not challenged the examinations' adequacy or thoroughness, or the competency of the examiners. Accordingly, VA's duty to provide a VA examination is satisfied. Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for COPD is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs