Citation Nr: 1515188 Decision Date: 04/08/15 Archive Date: 04/21/15 DOCKET NO. 14-19 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD). 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for bronchitis. 4. Entitlement to service connection for emphysema. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Santiago, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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). Subsequent to a March 2014 statement of the case, the Veteran submitted additional evidence, for which he waived review by the RO in a September 2014 written statement. See 38 C.F.R. § 20.1304(c) (2014). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his COPD is due to in-service asbestos exposure. 2. Resolving reasonable doubt in the Veteran's favor, his asthma is due to in-service asbestos exposure. 3. Resolving reasonable doubt in the Veteran's favor, he has had bronchitis due to in-service asbestos exposure. 4. The Veteran does not have emphysema. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for asthma have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 3. The criteria for service connection for bronchitis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 4. The criteria for establishing service connection for emphysema have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (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 2011 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 (STRs) and service personnel records have been obtained. Post-service private treatment records have also been obtained. The Veteran was provided a VA medical examination in September 2012. The examination is sufficient evidence for deciding the claims. The report is adequate as it is based upon review of the Veteran's claims file, consideration of the Veteran's prior medical history and examinations, describes the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contains reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis Generally, service connection requires evidence of a current disability, evidence of in-service incurrence or aggravation of an injury or disease, and evidence of a nexus between the current disability and the in-service disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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 the preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 49. 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); 38 C.F.R. § 3.102. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, VA issued a 1988 circular on asbestos-related diseases which provided guidelines for considering such 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 (Oct. 3, 1997). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The above-mentioned provisions of M21-1 were 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." The manual provisions acknowledge that inhalation of asbestos fibers 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 urogenital 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. Occupational exposure to asbestos has been shown in insulation and shipyard workers and in carpentry and construction among others. It is well known that during World War II, several million people employed in U.S. shipyards and U.S. Navy veterans were exposed to chrysotile products as well as amosite and crocidolite since these varieties of asbestos were used extensively in military ship construction. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-g. VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. 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 Veteran's STRs are negative for respiratory problems except for 1954 records of treatment for common cold, head and chest cold, and cough. The Veteran's separation examination revealed normal results, to include normal lungs and chest. The Veteran's DD Form 214 and service personnel records indicate that he served as an electrician in the U.S. Navy, to include service on the U.S.S. Hubbard and U.S.S. Denebola. Private treatment records show that the Veteran was treated for bronchitis in June 1997 and in November 2010. Private treatment records also reveal treatment for asthma, diagnosed in April 2004, and mild COPD, diagnosed in September 2000. September 2000 private treatment records also indicate that the Veteran was a smoker at 1.5 packs per day for approximately 20 years but quit 30 years prior to that treatment record. January 2004 and April 2004 private treatment records show that the Veteran reported having a "touch" of emphysema and mild emphysema, respectively. At the September 2012 VA examination, the examiner reported that the Veteran had diagnoses of asthma and COPD. Although he mentioned the term emphysema, the examiner did not indicate that the Veteran had emphysema. While the examiner did not relate the Veteran's current respiratory conditions to his in-service common colds, the examiner opined that the Veteran's respiratory conditions were caused by or a result of the exposure to asbestos while serving in the U.S. Navy as an electrician aboard Navy ships. The examiner cited studies involving asbestos exposure and respiratory disease in support of that opinion. The Board notes that the examiner appears to have included the claimed conditions of acute bronchitis, COPD, asthma, and emphysema in providing that specific opinion. However, the examination report clearly shows that the examiner only checked the boxes indicating diagnoses of asthma and COPD, and not emphysema or bronchitis or other respiratory conditions. As such, the Board finds that the examiner's opinion regarding asbestos applies only to asthma and COPD. A March 2014 letter from one of the Veteran's private physicians reveals that the Veteran was a patient in her office since 1996. The physician stated that the Veteran has had problems with recurrent bronchitis for several years before being officially diagnosed with COPD in 2003. The physician opined that the Veteran's condition is at least as likely as not caused by his exposure to asbestos, stack ash, and fumes from burning fuels while in active duty in the Navy. Neither the letter nor treatment records from that physician do show a diagnosis of emphysema. The Veteran's service records do not expressly show that he was exposed to asbestos during military service. However, personnel records reflect service as an electrician aboard the U.S.S. Hubbard and U.S.S. Denebola, ships constructed during World War II. Notably, according to VA's Adjudication Procedure Manual varieties of asbestos were used extensively in military ship construction during World War II. See M21-1MR, Part IV, Subpart ii, Ch. 2, Sec. C, Para. 9g. The Veteran has credibly reported he had in-service exposure to asbestos aboard such ships. Given this service, there is a likelihood (greater than 50 percent probability) that the Veteran was exposed to asbestos during his active military service. Although the Veteran apparently did not seek treatment for respiratory complaints for many years after his separation from military service, this delay in seeking treatment or receiving diagnoses for respiratory conditions is not inconsistent with the latent period for asbestosis. 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. See M21-1MR, Part IV, Subpart ii, Ch. 2, Sec. C, Para. 9d. The evidence shows that the Veteran has had diagnoses of COPD (despite discrepancies in initial diagnosis dates), asthma, and bronchitis, but it does not show a diagnosis of emphysema, besides the Veteran's own reports. Given the Veteran's service in aboard Navy ships likely built with asbestos as an electrician, the Board finds that the Veteran was probably exposed to asbestos. Additionally, the Board finds that the VA examiner's opinion and the March 2014 letter from the Veteran's private physician are persuasive and have great probative value. On applying the benefit-of-the-doubt doctrine, where reasonable doubt is resolved in favor of the Veteran when the evidence is in relative equipoise, service connection for COPD, asthma, and bronchitis is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Furthermore, specifically regarding the bronchitis claim, the evidence establishes a "current disability" during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). The requirement that a "current disability" be present in a service connection claim is satisfied when an appellant has a disability at the time a claim is filed or during the pendency of that claim even if that disability subsequently resolves. Id. The Board may also make a factual finding as to whether an earlier diagnosis is sufficiently proximate to the filing of a claim so as to constitute evidence of a current diagnosis. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, in contrast, the Veteran's claim of service connection for emphysema fails because the probative and persuasive evidence does not establish that he currently has emphysema. The Veteran's STRs are negative for diagnosis of emphysema. Also, the Veteran has been seeking treatment for other conditions, and no physician provided a diagnosis of emphysema in these records. The Veteran, as a layperson without medical expertise, is not competent to render a medical diagnosis such as emphysema. This type of medical finding is within the province of a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the absence of proof of a present disability, there can be no valid claim, and tumors have not been shown in this case regardless of the Veteran's probably exposure to asbestos. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, service connection is not warranted for emphysema. In sum, resolving doubt in the Veteran's favor, the evidence is at least in equipoise regarding finding that the Veteran has or has had diagnoses of COPD, asthma, and bronchitis that are related to in-service asbestos exposure. Therefore, the Board concludes that service connection for those disabilities, but not emphysema, is warranted. See 38 U.S.C.A. §§ 1110; 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert, 1 Vet. App. at 49. ORDER Service connection for COPD is granted. Service connection for asthma is granted. Service connection for bronchitis is granted. Service connection for emphysema is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs