Citation Nr: 1511592 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 11-31 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure and/or benzene exposure. 2. Entitlement to service connection for residuals of hairy cell leukemia, to include as due to asbestos exposure and/or benzene exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Unidentified Party ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1945 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 2011 and March 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board, in a March 2014 decision, reopened the Veteran's claim for service connection for residuals of hairy cell leukemia, to include as due to asbestos exposure. In March 2014 and October 2014, the Board, in pertinent part, remanded the issues on appeal for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran and an unidentified party testified before the undersigned Veterans Law Judge at a February 2015 videoconference hearing. A transcript of this hearing is in the Virtual VA paperless claims file associated with the Veteran's appeal. In February 2015, the Veteran submitted additional evidence in support of his appeal along with a signed waiver of RO consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2014). In a February 2015 statement, the Veteran amended his claim to include benzene exposure as another theory of entitlement for his service connection claims. As such, the claims have been recharacterized as reflected on the title page. This appeal has been processed through the Veterans Benefits Management System (VBMS) electronic paperless appeals processing system. A review of the Virtual VA claims file reveals VA treatment records dated through September 2013, which have been considered by the RO in the September 2014 supplemental statement of the case. 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). The issue of entitlement to service connection for residuals of hairy cell leukemia, to include as due to asbestos exposure and/or benzene exposure is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence demonstrates that the Veteran's chronic obstructive pulmonary disease (COPD) was etiologically related to his in-service asbestos exposure. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Given the Board's favorable decision in granting service connection for a respiratory disorder, to include as due to asbestos exposure, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection for a claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which 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 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00 (April 13, 2000). The aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for a respiratory disorder under these administrative protocols using the specified 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. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and uro-genital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others including workers involved in the manufacture and servicing of friction products such as clutch facings and brake linings. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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 professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that he developed respiratory problems while serving in the Navy aboard the U.S.S. Dobbin where he was exposed to asbestos. He was an apprentice seaman whose duties included repairing ships. He said he was in storage areas where asbestos was kept. He noticed his coughing symptoms during service when other people told him he should stop smoking or seek treatment. The Veteran did not seek treatment while in service. His coughing symptoms continued and worsened over the years after his discharge. Before the Veteran was treated with medication, he was admitted to the hospital several times for his respiratory problems and given oxygen. He first sought treatment in the late sixties or early seventies. He was diagnosed with bronchitis, asthma, and COPD. See February 2015 Board hearing transcript. He currently treats his respiratory symptoms with daily prescribed medication. See September 2014 VA examination. The Veteran's notice of separation reflects that he served aboard the U.S.S. Dobbin during World War II as a seaman. The M21-1 MR states that during World War II, U.S. shipyard workers and U.S. Navy Veterans were exposed to a form of asbestos as they were used extensively in military ship construction. See M21-1 MR, Part IV, Chapter 2, Section C, paragraph 9h. Based on the Veteran's description of his duties aboard the naval ship, the Board finds that the Veteran's assertion that he was exposed to asbestos while in service appears credible and consistent with the circumstances of his service. A July 1946 separation examination reflects normal chest x-ray results. No other service treatment records show any complaints, treatment, or diagnoses for any respiratory problems. The Veteran's private treating pulmonologist, who had been treating the Veteran for the past 10 years, stated that the Veteran had been diagnosed with asthma and now had significant COPD related to his asthma. See May 2009 statement. At a December 2010 VA examination, the Veteran reported that he was diagnosed with asthma and bronchitis for the past 20 years. He currently had shortness of breath with walking 15 feet, weekly asthmatic attacks and periodic respiratory infections. Following an objective evaluation, the VA examiner, a board certified occupational and environmental medicine physician, found that the Veteran had chronic obstructive lung disease with asbestos exposure based on the Veteran's history of in-service asbestos exposure, his history of chronic lung disease, and the objective clinical examination findings and abnormal pulmonary function test (PFT) results. At a November 2012 VA examination, the Veteran reported that his only asbestos exposure was his one year serving aboard the U.S.S. Dobbin. He also reported a long history of smoking tobacco. Following an objective evaluation, the VA examiner, an assistant chief primary care physician, diagnosed the Veteran with asthma, which he noted began during childhood, and COPD, which was diagnosed in 1995. The VA examiner found that the Veteran's COPD was the predominant condition over asthma. Based on a review of the Veteran's in-service and post-service treatment records and medical literature, the VA examiner concluded that "the Veteran's asthma/COPD [was] less likely as not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge including alleged asbestos exposure and [was] at least as likely as not a result of tobacco abuse." The November 2012 VA examiner opined that the December 2010 VA examiner's opinion linking COPD and asbestos was "clear and unmistakable error contradicted by the studies included in the report and the literature." At a September 2014 VA examination, the VA examiner, a doctor of osteopathic medicine, noted that the Veteran had been diagnosed with asthma in 1985 and had a history of COPD. The Veteran had a history of smoking from age 15 until he quit 42 years later in 1984. Following an objective evaluation, the VA examiner found that it was less likely as not that the Veteran's current pulmonary conditions were related to asbestos exposure as there was no history of exposure to asbestos under risky conditions and the objective clinical and diagnostic findings, including a chest x-ray and a PFT, did not suggest asbestos exposure pulmonary disease. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds that the December 2010 VA examiner's opinion is more probative than the November 2012 and September 2014 VA examiners' opinions. The December 2010 VA examiner is a board certified occupational and environmental medicine physician, who interviewed the Veteran, performed a physical examination, and provided an opinion with a complete rationale for that opinion based upon an accurate recitation of the facts. The December 2010 VA examiner found that based on the Veteran's asbestos exposure while in the military, his history of chronic lung disease, abnormal PFT results and clinical examination findings, the Veteran's chronic obstructive lung disease was due to his asbestos exposure. By contrast, the November 2012 VA examiner based his opinion, in part, on the finding that the Veteran's asthma had existed since childhood. However, the Veteran's service treatment records do not reflect any evidence of asthma. Furthermore, the Veteran reported that his respiratory problems began during his military service. Therefore, the Board finds that the November 2012 VA examiner's opinion is based on an inaccurate factual premise, so the opinion holds little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Although the November 2012 VA examiner found that the December 2010 VA examiner's opinion was contradicted by the medical literature that the November 2012 examiner referred to in his report, the Board finds that December 2010 VA examiner's medical expertise in occupational and environmental medicine outweighs the opinion of the November 2012 VA examiner, a primary care physician. In addition, the September 2014 VA examiner based his opinion, in part, on the Veteran's lack of exposure to asbestos under risky conditions. The September 2014 VA examiner did not dispute that the Veteran was exposed to asbestos; he disputed that the type of exposure he had was significant enough to have caused his current pulmonary disease. Again, the Board finds that the medical expertise of the December 2010 VA examiner outweighs the opinion of the September 2014 VA examiner, a doctor of osteopathic medicine. Finally, the Board finds that the Veteran's lay testimony is both competent and credible that he did not have respiratory problems until he entered military service and that his respiratory problems continued and worsened over the years following his separation from service. See Layno v. Brown, 6 Vet. App. at 470. In sum, the evidence demonstrates that the Veteran has a current diagnosis of asthma and COPD, that the Veteran was exposed to asbestos while repairing naval ships, and that the most probative medical evidence supports that such exposure caused his current chronic obstructive lung disease. Therefore, the Board finds that the Veteran's service connection claim for a respiratory disorder must be granted. ORDER Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure, is granted. REMAND Unfortunately, a remand is required in this case for the issue remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran underwent his most recent VA examination in September 2014 to determine the etiology of his residuals of hairy cell leukemia. The September 2014 VA examiner found that the Veteran's hairy cell leukemia was in remission, that he underwent a splenectomy in February 2013, and that he has not received any other treatment for his leukemia, including a blood or platelet transfusion or chemotherapy. Since the September 2014 VA examination, the Veteran has testified at his February 2015 Board hearing that his hairy cell leukemia may have deteriorated as his platelet levels have decreased. In addition, the September 2014 VA examiner opined that the Veteran had no evidence of asbestos exposure. The VA examiner also suggested that the Veteran's report that the ships were "full of asbestos" was not sufficient evidence; there was no evidence that the Veteran cut, milled, or machined asbestos, which the VA examiner determined was necessary for ingestion. The VA examiner did not explain why such level of asbestos exposure was required. The VA examiner also found that current medical literature did not provide a relationship between hairy cell leukemia and asbestos exposure. However, the Veteran testified that he found medical research that linked a variety of cancers to asbestos exposure. See February 2015 Board hearing transcript. The Veteran has not currently submitted such medical research. Finally, in a February 2015 statement, the Veteran has suggested that he was exposed to benzene during his military service. The record does not include any opinion as to whether such exposure caused him to develop any residuals of his hairy cell leukemia. The Veteran has also not offered specific evidence of such exposure in service. The Board finds that a new VA examination is warranted as the Veteran's hairy cell leukemia may have worsened, the Board has found that the Veteran was exposed to asbestos during his military service, and the Veteran has suggested that he has evidence that provides an etiological relationship between his hairy cell leukemia and his exposure to asbestos. Furthermore, the Veteran claims that his benzene exposure may have caused his hairy cell leukemia. On remand, VA should provide the Veteran with a new VA examination and an opportunity to submit any additional evidence to support his claim, including any relevant medical research. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain any of the Veteran's outstanding treatment records for his residuals of hairy cell leukemia that are not currently of record. The Veteran must be provided with the necessary authorizations for the release of any treatment records. The AOJ must then obtain and associate the records with the electronic claims file. 2. After the above development has been completed, to the extent possible, the AOJ should schedule the Veteran for a VA examination with an appropriately qualified examiner to determine the nature and etiology of any residuals of hairy cell leukemia. The claims file, including a copy of this REMAND, must be available to the examiner for review. The examiner is asked to respond to the following: a. Identify any current residuals of the Veteran's hairy cell leukemia. b. Is it at least as likely as not (50 percent probability or more) that the Veteran's hairy cell leukemia is related to any injury, disease, or event during the Veteran's military service, to include asbestos exposure and/or benzene exposure? In providing the requested opinion, the VA examiner should assume that the Veteran was exposed to asbestos during military service. All indicated tests and studies should be performed. All examination findings, along with a complete rationale for all opinions expressed, should be discussed in the examination report. 3. Then, the AOJ should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs