Citation Nr: 1520979 Decision Date: 05/15/15 Archive Date: 05/26/15 DOCKET NO. 10-38 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service exposure to asbestos and herbicides. ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to September 1968. The Veteran died in March 2011. The appellant is the Veteran's surviving spouse and in October 2013 VA granted her motion for substitution. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The appellant requested the opportunity to testify at a hearing before a Veterans Law Judge, and was scheduled to appear in April 2015. However, she subsequently canceled. As such, her hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2014). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been raised by the record in a February 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The preponderance of the evidence fails to link the Veteran's COPD to service, to include asbestos exposure. 2. COPD is not a disease which is presumptively related to herbicide exposure. 3. The Veteran did not have actual exposure to herbicides such as Agent Orange during service. 4. The preponderance of the evidence fails to link the Veteran's COPD to service, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for COPD, claimed as respiratory problems, to include as due to asbestos and herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5103, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim in an August 2008 letter that explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The August 2008 letter also informed him of degree of disability and effective date criteria. The Veteran's claim was most recently readjudicated in a November 2013 supplemental statement of the case. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the Veteran's claim. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). Regarding VA's duty to assist, the Veteran's service personnel records, VA treatment records, and private treatment records have been associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). A VA examination was conducted in April 2009. The Board finds that the examination report is adequate for evaluation purposes because the examiner conducted an interview, clinical evaluation, and review of the Veteran's medical history and records. The opinion expressed considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). His service treatment records (STRs), are not on file and, according to the record, cannot be located. A formal finding on the unavailability of STRs was issued in January 2009. The Veteran was notified of this issue in a January 2009 letter and he did not advise VA that he had any STRs in his possession. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, efforts were made to corroborate the Veteran's assertion that he was exposed to Agent Orange during service. In a January 2012 response to the RO's Personnel Information Exchange System (PIES) request, it was reported that they were unable to determine if he had in-county service in the Republic of Vietnam, but the Veteran served on the U.S.S. Frank Knox and his ship was in the official waters off of the Republic of Vietnam at various times from August 1967 to December 1967. Personnel, Service Department, and VA records were reviewed in an attempt to ascertain whether the Veteran did indeed have in-service Agent Orange exposure, but no such corroborative evidence was discovered. Further, the Veteran has not alleged, and the record has not otherwise revealed, any pertinent records that remain outstanding with respect to his appeal. The Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the two. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection for certain diseases, may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. COPD is not among the listed diseases subject to presumptive service connection on the basis of Agent Orange. 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide applies for a Veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Determinations as to service connection will be based on review of all evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the claimant's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). A. Asbestos The Veteran asserted that his COPD was causally or etiologically related to service. Specifically, he contended that he developed COPD as the result of exposure to asbestos, dust, mold, and chemicals when he served aboard the U.S.S. Frank Knox. There is no specific statutory or regulatory guidance with regard to claims for service connection for 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 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned 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." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following 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 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. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. 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. The Manual further provides that 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. As an initial matter, the Board notes that the Veteran's medical records provide a diagnosis of COPD. The Veteran's service personnel records reveal that he served on the U.S.S. Frank Knox as a machinists mate, seaman, and fireman. Therefore, it is presumed that he was exposed to chemicals and asbestos during his military service. It is neither shown nor contended that the Veteran manifested COPD prior to August 2006 (approximately 38 years after service separation), when private medical providers first diagnosed the Veteran with COPD. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this case, the Board finds no competent evidence that attributes COPD to active duty. The Veteran was afforded a VA respiratory examination in April 2009. The Veteran reported to the examiner that he began having breathing problems in 2006 and that he quit smoking in 2004 after smoking one pack of cigarettes per day for thirty-five years. After reviewing the claims file and evaluating the Veteran, the examiner opined that it was less likely than not that the lung disability was incurred or caused by an in-service event because there is no evidence of asbestosis or similar disease. Moreover, the examiner noted that the Veteran's smoking history is more consistent with COPD. While the Veteran has made statements to the effect that his lung disability is related to asbestos exposure in service, he is not competent to make such a determination. His statements on etiology are therefore not afforded probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006). The Veteran has submitted a number of internet articles and book print outs that suggest a link between exposure to chemicals and asbestos and the development of COPD. However, there is no medical opinion to etiologically link this Veteran's COPD to his chemical and asbestos exposure in service. The Board finds that the April 2009 VA examiner's opinion is the most probative of record. The VA examiner's opinion constitutes competent medical evidence because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, the Board finds that the VA examiner's etiological opinion is credible based on its internal consistency and his duty to provide truthful opinions. The Board further finds that the VA examiner's opinion is most probative because he considered the Veteran's medical records and discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning demonstrating that the Veteran's diagnostic results show that his COPD is unrelated to service. 38 C.F.R. § 3.303. The Veteran has not submitted a medical opinion in support of his claim, and the only relevant medical evidence of record-the opinion of the VA examiner-is negative, finding that the Veteran's COPD is due not to any chemical or asbestos exposure but instead to his long history of smoking. Because this opinion is not controverted by any probative medical evidence of record, and in light of the foregoing analysis and the underlying facts, the Veteran's service connection claim for COPD must be denied. B. Herbicides In the alternative, the Veteran asserted that his COPD was due to herbicide exposure while serving aboard the U.S.S. Frank Knox in the waters off Vietnam. There is no specific indication on the DD-214 or in the Veteran's service personnel records to corroborate the assertion of service in the Republic of Vietnam, although the Veteran had over two years of foreign service. Nonetheless, COPD is not included on the exclusive list of diseases which are covered by the herbicide presumption. Therefore, even assuming that the Veteran had service in Vietnam, the claim on an Agent Orange presumptive basis is not warranted. The Board will address the claim under direct service connection. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Board observes, however, that there is no competent evidence of record showing that the COPD was incurred in or aggravated by service or was proximately due to or the result of any disease or injury incurred in or aggravated by service. In this case, neither the appellant nor the Veteran has alleged that he was treated for COPD or any associated problems while on active service. The Board has considered the Veteran's lay statements. Specifically, he asserted that he was exposed to herbicides by being around aircrafts that flew over Vietnam that dumped excess Agent Orange into the water and resultantly being exposed to Agent Orange mist. While the Veteran is competent to state that he felt mist, he is not competent to state that such mist contained herbicide agents. Further, he has not provided any support for his assertions. The Veteran has not stated that he has any specific knowledge of his actual exposure to Agent Orange and the allegations are clearly speculative. There is no evidence of record to establish that it is at least as likely as not that the Veteran was exposed to Agent Orange in the manners alleged. Direct service connection may not be granted without evidence of in-service incurrence or aggravation of a disease or injury. The Board has found that there is no evidence of in-service herbicide exposure. Therefore, the Veteran's claim cannot be granted based on direct service connection. 38 C.F.R. § 3.304. Moreover, no medical professional has ever suggested that the Veteran's COPD was related to his military service, and the appellant has not presented, identified, or even alluded to the existence of any such medical evidence or opinion. To the extent the appellant relates the Veteran's COPD to his service (to include herbicide exposure), the Board finds that such is not competent evidence. The matter of a nexus between a current disability such as COPD and service is (in the absence of continuity of symptomatology which the Veteran is not alleging) a question that is beyond lay observation. Jandreau. Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for COPD, to include as due to asbestos and Agent Orange exposure, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs