Citation Nr: 1526960 Decision Date: 06/24/15 Archive Date: 06/30/15 DOCKET NO. 10-07 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a disability manifested by shortness of breath and restrictive impairment, claimed as due to in-service exposure to asbestos. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 1952 to August 1957, and from January 1958 to January 1966. This matter is before the Board of Veterans' Appeals (the Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A hearing was held before the undersigned in September 2012, and a transcript of that hearing is of record. During the course of this appeal, the Veteran has asserted that he has a lung disability that is related to in-service exposure to asbestos. As will be discussed below, given how medical professionals have been unable to attribute the Veteran's current symptomatology (shortness of breath and restrictive impairment) to a specific respiratory disability, the Board has expanded the issue on appeal to include consideration whether any disability manifesting in such symptoms can in fact be linked to the Veteran's active duty service for the purpose of a service-connection award. Cf. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). 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 2014). FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether the Veteran was exposed to asbestos during his period of active duty military service. 2. The evidence of record is against a finding that the Veteran has a current disability manifested by shortness of breath and restrictive impairment that is related to his period of active duty service. CONCLUSION OF LAW Service connection for a disability manifested by shortness of breath and restrictive impairment, to include as due to in-service asbestos exposure, is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93 ; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Concerning VA's duty to notify, the record reflects that VA provided the Veteran with the notice required under the VCAA in a letter dated in May 2008. Concerning VA's duty to assist, VA has obtained the Veteran's service treatment records, post-service VA and private treatment records, and his own lay statements and testimony. Per the instructions of an October 2012 Board remand, VA reached out to the Veteran in an April 2013 letter requesting assistance in obtaining all records related to a class action lawsuit against Johns-Manville in the 1980s regarding a settlement for an asbestos-related lung disease. The Veteran did not respond to this request. The Veteran has identified no outstanding evidence, to include any other medical records, that could be obtained to substantiate his claim, and the Board is also unaware of any such outstanding evidence. As discussed in the analysis below, the Veteran has been evaluated by VA medical professionals on several occasions in an effort to determine the specific nature and etiology of his breathing problems. Most recently, the Board requested an expert medical opinion from the Veterans Health Administration (VBA) to clarify what appear to be incomplete and conflicting medical findings in the record. The Board received an expert opinion from Dr. H.S. in March 2015 specifically addressing the key questions at issue in this appeal. The Board observes that the findings contained in Dr. H.S.'s report are adequate for adjudicatory purposes. Indeed, it is clear from Dr. H.S.'s report that he was keenly aware of the Veteran's pertinent medical history, considered the Veteran's reports of in-service asbestos exposure, recognized and addressed discrepancies in the Veteran's medical diagnoses (or lack thereof), and rendered appropriate findings consistent with the other recent evidence of record and supported by clinical rationale. The Board accordingly finds that VA's duty to assist with respect to obtaining examinations or opinions addressing the nature and etiology of the Veteran's disability has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The record reflects that at this hearing the undersigned Veterans Law Judge set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. Accordingly, the Board will address the issue on appeal below. Service connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). In this connection, the Veteran asserts that he has a current lung disability that was caused by in-service exposure to asbestos. There is no specific statutory guidance regarding claims for service connection for asbestosis or other asbestos-related diseases, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR), provides information concerning claims for service connection for disabilities resulting from asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The M21-MR adds that where service-connection is requested for a disability involving asbestos exposure, as in this case, VA must determine whether or not service records demonstrate the veteran was exposed to asbestos during service, whether development has been accomplished sufficient to determine if the veteran was exposed to asbestos either before or after service, and whether a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Pt. IV, Subpt. ii, Ch. 2, Sec. C, Para. 9(h) (M21-1MR, IV.ii.2.C.9.h). At the outset, the Board wishes to make clear that the Veteran has competently and credibly reported that his in-service duties as a jet engine mechanic involved working on airplane brakes, which included using an air hose to blow out brakes that sent clouds of dust and asbestos into the air. He testified that he did not wear respiratory protection when performing these duties, and regularly breathed in the dust. Although the Veteran's service records do not document any specific instance of asbestos exposure, the Board finds no reason to doubt that the Veteran was indeed exposed to asbestos during his periods of active duty service as he so describes. As such, the Board resolves all doubt in the Veteran's favor and finds that Shedden element (2), in-service injury, is indeed satisfied. The key question at issue in this case is not whether the Veteran had in-service asbestos exposure, but rather whether the Veteran has a current disability that is related to this exposure. The medical evidence of record includes a May 8, 1981 radiology report from Dr. S.S., who at the time identified scattered nodular densities in the Veteran's right and left lower lung fields, most of which appeared noncalcified and "may well be parenchymal and [a] reaction to prior asbestos exposure and/or prior inflammatory change or combination of the two." Dr. S.S. also identified linear fibrosis in the right middle lobe with a lower than usual right hilum that suggested "prior right middle lobar atelectatic changes, possible loss of volume, which should be clinically correlated." Finally, Dr. S.S. also observed bilateral lateral pleural thickening "compatible with reaction to prior asbestos exposure." Subsequently, in September 1988, the Veteran underwent pulmonary function testing which revealed a mild obstructive defect, and probable asbestosis. He was specifically diagnosed with asbestosis in June 1989. See the Veteran's September 30, 1988 and June 5, 1989 reports from Dr. L. In April 2008, the Veteran filed his service-connection claim for a lung disability. At his February 2009 VA examination, the Veteran reported that he noticed significant shortness of breath with exertion since the 1990s with some increase since 2000, and now gets tired with any significant walking of over 100 yards. Upon examination of the Veteran, but prior to reviewing the Veteran's x-rays, the VA examiner stated that the Veteran's symptoms were "consistent with pulmonary asbestosis from exposure in the 1950s and 1960s." However, after reviewing x-rays and CT scans of the Veteran's chest, the examiner changed his assessment, stating that he observed no evidence of asbestos exposure, only evidence of an old granulomatous disease, probably histoplasmosis. The examiner pertinently noted that the Veteran has current restrictive impairment of his lung function, but concluded that it was "less likely as not this Veteran's pulmonary difficulty with suggestive shortness of breath is due to asbestosis." Significantly, in an October 2013 addendum opinion, a different VA physician could not determine whether the Veteran's mild restrictive spirometry patterns and shortness of breath identified by the February 2009 VA examiner were reflective of any current lung disability, whether asbestos-related or not, without resorting to speculation. The physician nonetheless concluded that no lung disability could be related to any incident in service, to include in-service asbestos exposure. A third VA examiner noted in April 2014 that the Veteran showed no evidence on examination, chest x-ray, or pulmonary function testing of a lung disability, and specifically no evidence of asbestosis. In the same report however, the examiner noted that his lung condition would cause him difficulty with any employment that required physical activity, as he has dyspnea with exertion, and that x-rays identified old granulomatous disease. Although the examiner did highlight the above-referenced 1988 finding that the Veteran had an "obstructive" defect upon pulmonary function testing, and clarified that asbestos causes "restrictive" lung disease, the examiner made no mention of the fact that "restrictive impairment" of the Veteran's lung function was indeed identified by the February 2009 VA examiner. Finally, although spirometry test results were "normal" in February 2014, the examiner did note that the Veteran provided inconsistent efforts, and that he was unable to complete the DLCO. The medical evidence described above does not adequately address whether the Veteran has a current lung disability, and if so whether such disability or disabilities are as likely as not related to in-service asbestos exposure. On the one hand, it appears that physicians in the 1980s clearly found evidence of asbestos-related lung disease after testing and imaging of the Veteran's respiratory system. More recently however, although the Veteran exhibits symptoms of restrictive impairment and shortness of breath, VA physicians have been unable to identify the presence of any lung disability, let alone one related to asbestos exposure. In addition, although the April 2014 VA examiner attempted to reconcile the Veteran's current disability picture (or lack thereof) with some of his prior medical history (specifically the September 1988 finding of an obstructive lung defect by Dr. L.), she did not do so with respect to the Veteran's more recent February 2009 assessment noting restrictive impairment of lung functioning. To clarify the nature and etiology of any existing disability, the Board requested an expert medical opinion from the VHA in December 2014. In March 2015, Dr. H.S., a board-certified pulmonologist, responded to this request indicating that he too could not conclude that the Veteran had any lung disability given the data available in the claims file. Dr. H.S. acknowledged clear symptoms of progressive breathlessness and impairment in performing activities of daily living (ADLs), but could not determine whether such symptoms were age-appropriate or attributable to disease without more data. Crucially however, despite any existing ambiguity in diagnosis, Dr. H.S. did conclude that any disability that the Veteran might have "cannot reasonably be attributed to asbestosis or asbestos-related lung disease." Dr. H.S. suggested that while the Veteran may have restrictive lung disease, this is due to an elevated RV [right ventricular] value, which is not typical of asbestosis-related disease. Further, he noted that images obtained in 2009 showed no evidence of pleural disease of any kind. Significantly, Dr. H.S. reviewed and commented upon the medical evidence of record from the 1980s, which indicated the presence of asbestosis. Dr. H.S. noted that it is possible that in the 1980s, best available technology might have suggested the Veteran had asbestos-related disease; however, imaging has improved substantially since then, and the CT images in 2009 show no such disease. Dr. H.S. specifically emphasized that asbestos disease is "permanent and progressive," meaning that it is "virtually impossible that the [Veteran] had asbestos disease that has resolved or 'didn't show up' on CT images in 2009." It is clear from the above-referenced medical opinions that no physician asked to assess the nature of the Veteran's symptoms of shortness of breath and restrictive impairment since the date the Veteran filed his claim for service connection in 2008 has been able to clearly identify any specific underlying disability causing such symptoms. That stated, the evidence of record does not specifically rule out the possibility of an existing underlying disability manifesting in shortness of breath and restrictive impairment, as it is clear such symptoms exist. The Board will therefore resolve all doubt in the Veteran's favor and concede for purposes of this decision alone, that the Veteran in fact has a current disability manifested by breathlessness and restrictive impairment of function. Shedden element (1) is accordingly satisfied. Even assuming a current disability exists, the Board must nevertheless deny the claim because the evidence of record weighs against a finding that any disability currently manifesting in the symptoms competently and credibly described by the Veteran is related to in-service exposure to asbestos. Indeed, as discussed above, Dr. H.S. concluded as much after review of all the evidence of record, to include medical findings from the 1980s to the present day. Dr. H.S.'s opinion is supported by strong clinical rationale, and is consistent with prior medical opinions of record dated since the Veteran filed his claim in 2008. Dr. H.S. recognized the Veteran's prior diagnoses of asbestos-related disease, but articulated reasons why such diagnoses should be afforded less probative weight given the technology limitations of the time, and the nature of asbestosis as a disease that is permanent and progressive. Indeed, the fact that all imaging taken since 2008 has essentially ruled-out asbestos-related disease strongly supports Dr. H.S.'s conclusion that any disease currently present is not related to asbestos exposure. Dr. H.S. pertinently added that if the Veteran had a restrictive lung disease, such was not typical of asbestos-related disease based on assessment of the Veteran's RV values. The Board accordingly finds Dr. H.S.'s medical opinion to be highly probative. Although evidence of record dating from the 1980s indicates the presence of an asbestos-related lung disease, expert analysis of more recent imaging strongly suggests that no such disability actually existed in the 1980s. There is no suggestion in the record, nor does the Veteran contend that his current breathing problems are attributable to any other potential injury or event occurring during his period of active duty service. Indeed, the Veteran's service treatment records include no documented complaints of breathing issues in service, and the Veteran specifically denied experiencing breathing problems in each of his reports of medical history. See, e.g., the Veteran's Oct. 14, 1965 Report of Medical History (indicating "no" when asked if he ever has or had shortness of breath, pain or pressure in the chest, chronic cough or asthma). Although Dr. H.S. did speculate that one "possible" explanation for the Veteran's granulomatous disease noted on images could be due to a variety of factors to include "infections, other occupational exposures (including beryllium, another element commonly found in airplane mechanics), and idiopathic diseases like sarcoid," Dr. H.S. made clear that such was not due to asbestos exposure. To the extent Dr. H.S.'s list of possible explanations includes a suggested relationship between hypothetical exposure to beryllium as an airplane mechanic in service and the Veteran's current symptoms, the Board finds such statements to be too general or speculative, couched in terms of possibility rather than probability, to support the Veteran's claim. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding doctor's statement that brain tumor "may well be" connected to Agent Orange exposure was speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion that stated "may" also implied "may not" and was therefore speculative). The Board is aware that there is a letter of record dated February 15, 1989 from a private law firm indicating that the Veteran was slated to receive payment from a class action settlement with Johns-Manville regarding asbestos exposure and resulting disease. Although such evidence implies that the Veteran may have had an asbestos-related lung disability, as discussed above, even if the payment occurred, the Board finds the more recent medical findings and opinion of Dr. H.S., who determined that the Veteran has no current disability related to asbestos-exposure, to be of greater probative weight. Indeed, Dr. H.S. recognized the Veteran's prior diagnoses of asbestos-related disease from the time of the lawsuit, but articulated clear medical reasons why the Veteran was likely misdiagnosed at that time. In light of the above, the Board finds that the evidence of record is against a finding that a relationship exists between the Veteran's current disability and his period of active duty service, to include in-service asbestos exposure. Shedden element (3) remains unsatisfied, and the appeal is denied on this basis. ORDER Service connection for a disability manifested by shortness of breath and restrictive impairment, claimed as due to in-service exposure to asbestos, is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs