Citation Nr: 1525578 Decision Date: 06/16/15 Archive Date: 06/26/15 DOCKET NO. 10-26 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as secondary to asbestosis. 3. Entitlement to service connection for bronchitis to include as secondary to asbestosis. 4. Entitlement to service connection for right ear hearing loss. 5. Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to November 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was scheduled to testify before a Veterans Law Judge at an April 2012 Board hearing at the RO. However, the Veteran failed to appear for the scheduled hearing and no good cause was given for such failure to appeal. Thus, the hearing request is considered withdrawn. The issues of entitlement to service connection for right ear hearing loss, entitlement to service connection for bronchitis, and entitlement to an initial compensable rating for left ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent medical evidence does not demonstrate asbestosis. 2. COPD is not related to the Veteran's active duty service, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for asbestosis have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). A standard April 2009 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records and personnel records have been obtained. Post-service VA and private treatment records have also been obtained, the evidence does not demonstrate and the Veteran has not indicated that he is in receipt of disability benefits from the Social Security Administration. The Veteran was provided a VA medical examination April 2010. The examination, along with the expert medical opinion, is sufficient evidence for deciding the claims considered on their merits. The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Although the Veteran's claim for service connection for bronchitis is being remanded below due to an inadequacy of the April 2010 VA examination, that inadequacy only pertains to the issue of whether bronchitis is related to service; the examination is wholly adequate for the claims of asbestosis and COPD. VA's duty to assist has been met. II. Service Connection Laws and Regulations To establish service connection, the evidence must show (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 current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009). See also 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.102 (2014). The "nexus" requirement may be established for a chronic disease, such as sensorineural hearing loss, by evidence of chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Neither asbestosis nor COPD are enumerated amongst the diseases in which continuity of symptoms may be shown to establish nexus. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted 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) (2014). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). Diseases associated with exposure to asbestos are fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and genitourinary system, except the prostate. M21-1MR, Part IV, Subpart ii, chapter 2, section C.9.b. 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, Part IV, Subpart ii, chapter 2, section C.9.e. It should be noted that the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV, Subpart ii, chapter 2, section C.9.d. Injury or disease attributable to a veteran's use of tobacco products during service will not be considered service connected for claims received after June 9, 1998. See 38 C.F.R. § 3.300 (2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran's service treatment records include a July 1977 treatment note which noted that the Veteran was treated for "bronchitis" about five years prior; the Veteran's chest was clear on x-ray. An impression of bronchitis was noted. An April 1980 complaint noted chest congestion and cough for three days. A September 1980 report of medical examination for the purpose of separation from service demonstrated a normal examination of the lungs and chest. In his September 1980 report of medical history the Veteran reported a history of pain or pressure in the chest. The Veteran's DD 214 form demonstrates that the Veteran served on the U.S.S. Dwight D. Eisenhower with a military occupational specialty of Electronics Technician. A May 2002 VA memorandum included a chart which demonstrated the probability of asbestos exposure for Navy military occupational specialties. The chart states that an electronics technician's likelihood of asbestos exposure was "probable." Post-service treatment records include an October 2006 private treatment record demonstrated clear lungs bilaterally. A February 2008 chest x-ray report from a private medical provider noted that x-rays demonstrated clear lung fields. A February 2008 private treatment note demonstrated that the Veteran was having trouble breathing and had lots of mucous at night and in the morning. It was noted that he had a pack per day smoking history and began smoking in 1978. The treating physician stated that the Veteran probably had a smoker's cough. In an April 2009 statement, the Veteran asserted that during his service on the USS Eisenhower, he was birthed below the flight deck and due to frequent landings and launches, asbestos material was dislodged in inadequate ventilation. A November 2009 VA medical center treatment note demonstrated a chronic productive cough. It was noted that the Veteran had been treated for bronchitis. It was noted that the Veteran smoked a pack per day for thirty years. The Veteran's physician stated that he was not totally convinced that the Veteran had COPD since his symptoms had resolved, but that more likely he had chronic bronchitis from smoking, a diagnosis of tobacco use disorder was provide. The Veteran was afforded a VA examination in April 2010. During his examination, the Veteran reported that he was treated several times while on active duty for bronchitis which were acute episodes which did resolve with time. The Veteran reported an episode of bronchitis a year which he stated could turn to pneumonia. The Veteran reported a productive cough of clear to white sputum that occurred most mornings. The Veteran stated that he smoked a pack of cigarettes a day for thirty years but had not smoked in six months. The Veteran denied any current treatment for respiratory condition. The Veteran reported exposure to asbestos while in the Navy. Physical examination and review of testing revealed lungs clear to auscultation with symmetric breath sounds. April 2010 high resolution CT scans were found to reveal linear scarring at the left lung base, but otherwise normal lungs. It was noted that a November 2009 chest x-ray image showed mildly hyperinflated but otherwise normal lungs and pulmonary function tests were found to be consistent with mild obstructive ventilatory deflect with hyperinflation. A diagnosis of chronic obstructive pulmonary disease (COPD) was provided. The examiner stated that the Veteran's COPD was less likely than not related to treatment in service for bronchitis or exposure to asbestos in service. The examiner explained that the Veteran had two episodes of reported acute bronchitis while in the military which would not have contributed to a chronic respiratory condition such as COPD. The examiner further noted that although the Veteran reported exposure to asbestos in service, there was no evidence based on high resolution CT scan or chest x-ray that the Veteran had an asbestos-related lung disease. The examiner stated that given the fact that the Veteran had a 30 year smoking history and mild COPD, it was at least as likely as not that the Veteran's current respiratory condition was likely related to his smoking history as this was the only notable risk factor for this condition. A May 2010 VA medical center treatment note reported that the Veteran was still having a productive cough but it was much better since he stopped smoking. Analysis Given the Veteran's military occupational specialty, in-service exposure to asbestos is conceded. In order to determine whether service connection is established there must be a present disability, and a relationship between that disability and service or a relationship between a service-connected disability and the disability claimed. As pertaining to the Veteran's claim for asbestosis, the medical evidence has not at any time demonstrated the presence of this disease. Specifically, the Veteran's April 2010 VA examiner found that clinical testing did not reveal asbestosis, as is required to demonstrate service connection for this disability. The Board is cognizant of the Veteran's assertions that he has asbestosis, however , as a lay person, he is not shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Determining the diagnosis of asbestosis requires medical expertise. Accordingly, the Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned no probative weight. Thus, as the evidence of record does not contain a clinical finding of asbestosis, a present disability is not shown and service connection for asbestosis may not be granted. A diagnosis of COPD, however, is clear, thus, service connection turns on whether asbestos exposure, or the Veteran's in-service bronchitis, or any other aspect of his military service, is related to his present COPD. A showing of continuity is not available as a means to establish service connection for COPD as it is not listed as a chronic disease under38 C.F.R. § 3.309. The Veteran claims that his COPD is related to asbestosis. As asbestosis has not been found to be service-connected, the Veteran's COPD may not be service-connected on a secondary basis based on a relationship to asbestosis. The Board notes the Veteran's contentions that his COPD is related to his military service. However, as noted above, the Veteran is not shown to have the medical expertise required to determine the etiology of his respiratory symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007) The Board finds that the competent medical evidence weighs against a finding that COPD is related to the Veteran's service. The April 2010 VA examiner and the Veteran's treating physicians all indicate that the Veteran's COPD is not related to his service but, instead, is most likely due to his thirty-year history of cigarette smoking. Service connection for disabilities resulting from tobacco use is prohibited. Additionally, the VA examiner's determination that the Veteran's bronchitis was not related to his COPD given that bronchitis had resolved by the Veteran's separation from service and that episodes of bronchitis would not lead to the Veteran's current disability weighs against the Veteran's claim that his COPD is related to service. A relationship between service and COPD is not established. Based on the foregoing, the Board finds that the Veteran's asbestosis and COPD claims must be denied. The Veteran is not shown to have asbestosis. While the Veteran was diagnosed with COPD, and exposure to asbestos in service is conceded, the weight of the medical evidence is against a finding that this disorder is related to his military service. On these facts, the preponderance of the evidence of record is against the claims. Therefore, the benefit of the doubt doctrine is not for application herein, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for asbestosis is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to asbestosis, is denied. REMAND The Veteran's April 2010 VA examination report includes the VA examiner's determination that COPD was not related to bronchitis in service. However, the examiner failed to note whether the Veteran's regularly recurring bronchitis, as reported by the Veteran, is related to his in-service complaints of bronchitis. Further, as the Veteran is shown to report having bronchitis repeatedly since his service, he is invited to provide evidence of treatment for bronchitis. Further, in accordance with its duty to assist, on remand, the RO should ensure that all available VA medical center treatment notes are incorporated with the claims file. Turning to the Veteran's hearing loss claims, the Veteran was afforded a VA hearing examination in August 2009. Regrettably a new VA examination is required for the Veteran's right ear hearing loss claim as the VA examiner failed to make a determination as to whether the Veteran's claimed hearing loss was due to service-despite a demonstration of decreased hearing thresholds between the Veteran's October 1976 and September 1980 reports of medical examination. Regarding the Veteran's left ear hearing loss, the August 2009 VA examiner provided no cogent rationale for why he found the left ear hearing loss less likely than not related to service. For these reasons, the Board finds the August 2009 VA examination is inadequate and a new VA examination must be scheduled. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all additional VA medical center treatment records. Contact the Veteran and request authorization and consent to release information to VA for the records any additional private facility where the Veteran received treatment for hearing loss and/or bronchitis and obtain such records thereafter. If any records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA respiratory examination. The claims file must be made available to the medical professional for review. The examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran had a diagnosis of bronchitis at any point during the course of the appeal, even if currently resolved. If so, the examiner should opine as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the current bronchitis is related to his bronchitis in service, or to in-service exposure to asbestos, or to any other aspect of military service. The supporting rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a new VA hearing loss examination. The claims file must be made available to the medical professional for review. The medical professional must opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's right and left ear hearing loss disability had clinical onset during active service or is related to any in-service disease, event, or injury, to include in-service acoustic trauma exposure. The supporting rationale for all opinions expressed must be provided. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs