Citation Nr: 1552417 Decision Date: 12/15/15 Archive Date: 12/23/15 DOCKET NO. 09-09 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disability, to include emphysema and pulmonary fibrosis, and to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously remanded the issue on appeal for additional development in July 2012 and July 2014. 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). In an August 2010 correspondence, the Veteran withdrew his request for a Board hearing. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for asbestosis. 2. The evidence does not demonstrate that the Veteran's currently diagnosed emphysema is etiologically related to his active duty service, to include as due to asbestos exposure. 2. The evidence does not demonstrate that the Veteran's currently diagnosed pulmonary fibrosis is etiologically related to his active duty service, to include as due to asbestos exposure. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a respiratory disability, to include emphysema and pulmonary fibrosis, to include as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all 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. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the notice requirements have been satisfied by letters in December 2007 and November 2008. The Board also concludes that the duty to assist has been satisfied as all pertinent service records, post-service treatment records, and lay statements are in the claims file. In addition, the Veteran underwent VA examinations in August 2012 and August 2014. As previously noted above, the Board has remanded the issue on appeal in July 2012 and July 2014 to obtain a VA examination and etiological opinion for the Veteran's claimed respiratory disability. In a November 2015 correspondence, the Veteran argued that the most recent August 2014 VA examination was not adequate and did not comply with the directives of the July 2014 Board remand. Specifically, the Veteran stated that the August 2014 VA examiner failed to obtain a detailed lay history of the Veteran's in-service and post-service asbestos exposure. In addition, the Veteran stated that the VA examiner failed to provide a sufficient etiological opinion in compliance with the specific remand instructions. However, the Board finds that there has been effective compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Here, the evidence shows that the VA examiner recorded the Veteran's recitation of his history of asbestos exposure. The Veteran gave a brief history of such exposure. The Veteran was made aware of the evidence required to substantiate his claim as due to asbestos exposure and has not chosen to provide any additional assertions of his asbestos exposure than the record currently reflects. In addition, the evidence shows that the August 2014 VA examiner provided an etiological opinion addressing the Veteran's medical history and current diagnoses with a thorough explanation in support of the opinion. Thus, the Board finds that the RO has substantially complied with its remand directives, and there is no need for another remand. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. II. Service Connection The Veteran contends that his current respiratory problems developed as a result of his working around asbestos while serving in the U.S. Marine Corps from 1966 to 1968. See August 2012 VA examination. 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 been included in VA Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chap. 1, Sec. I., Para. 3 (August 7, 2015) (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 2015. See M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, entitled "Service Connection for Disabilities Resulting from Exposure to Environmental Hazards or Service in the Republic of Vietnam (RVN)." VA must analyze the Appellant's claim of entitlement to service connection for respiratory disability, to include emphysema and pulmonary fibrosis, 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. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2f. 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, mining, milling, demolition of old buildings, carpentry and construction, 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. M21-1, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 2a-g. Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or 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), 3.313(a) (2015). In this case, the evidence does show that the Veteran served in Vietnam, however, he has not been diagnosed with a presumptive disease for exposure to herbicides. Therefore, the Veteran is not entitled to consideration of presumptive service connection on this basis. See DD Form 214. Military personnel records reflect that the Veteran served in Vietnam with the U.S. Marine Corps. His military occupational specialty (MOS) was a Shore Party Man. The Veteran received among other medals, a Combat Action Ribbon, and participated in multiple combat operations. The Veteran's military personnel records do not describe the Veteran's specific duties during his active duty service. As an initial matter, the Board finds that, according to the M21-1, the Veteran's MOS is not listed among those that have a probability of exposure to asbestos. M21-1, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3c. Thus, without any specific information about the duties that the Veteran performed in his MOS as Shore Party Man, the Board cannot conclude that his MOS alone is sufficient to establish that he was exposed to asbestos. Service treatment records (STRs) document that the Veteran had normal clinical evaluation results, including his lungs and chest. He also had negative chest x-rays. The STRs do not include any complaints, treatment, or diagnosis for any respiratory problems. See April 1966 enlistment examination, May 1967 replacement examination, and February 1970 separation examination. The earliest documented record of a diagnosis of a respiratory disability was in a February 2006 VA CT chest scan. The CT scan revealed that the Veteran had diffusely increased interstitial densities, probably representing interstitial fibrosis and scarring. No suspicious pulmonary masses were found. A June 2006 VA CT chest scan revealed findings of moderate chronic interstitial lung disease with early honeycombing, multiple pleural-based noncalcified nodules throughout the lungs, which were indeterminant, and mild to moderate mediastinal adenopathy without change. An August 2006 VA CT chest scan revealed that the Veteran's lungs were mildly emphysematous and had moderate, diffuse interstitial changes. The Veteran was diagnosed with probable pulmonary fibrosis plus emphysema. See February 2007 VA treatment record. A June 2009 VA treatment record reflects that the Veteran was breathing better since he had stopped smoking. In August 2012, the Veteran underwent a VA respiratory examination. The Veteran reported his in-service history of working around asbestos. No specific respiratory symptoms were reported. He had a 47-year history of smoking two packs of cigarettes per day before he quit smoking in 2007. The Veteran had also retired from working in carpentry. Upon objective evaluation, including a chest x-ray and pulmonary function test (PFT), the VA examiner diagnosed the Veteran with emphysema and pulmonary fibrosis. The VA examiner opined that the Veteran's pulmonary fibrosis was less likely than not incurred in or caused by his active duty service. No etiological opinion was provided for the Veteran's emphysema diagnosis. The VA examiner discussed the various causes for pulmonary fibrosis, including jobs involving working with asbestos, ground stone, or metal dust, which involve small particles that when they are inhaled damage the alveoli causing fibrosis. Usually pulmonary fibrosis has no known cause and is referred to as idiopathic pulmonary fibrosis (IPF). With IPF, the VA examiner explained that a careful examination of a patient's environmental and occupational history would not provide clues as to its cause. The VA examiner also noted that cigarette smoking can interact with asbestos causing a higher chance of developing lung cancer than for a non-smoker. The Veteran was afforded another VA examination in August 2014. The Veteran reported his in-service asbestos exposure, but no current respiratory symptoms. Upon objective evaluation, including a PFT, the VA examiner diagnosed the Veteran with emphysema and pulmonary fibrosis. The VA examiner opined that the Veteran's emphysema was likely caused by his more than 40-year history of cigarette smoking. Asbestosis was not diagnosed. The VA examiner noted that the Veteran's pulmonary fibrosis diagnosis was based on a radiological finding, but the cause was unknown. Based on the medical literature, the VA examiner explained that the "precise factors that initiate the histopathologic processes observed in IPF are unknown" and "[c]ertain risk factors are associated with IPF, including cigarette smoking, viral infection, environmental pollutants, chronic aspiration, genetic predisposition, and drugs." The VA examiner opined that the Veteran's claimed respiratory disability was less likely than not incurred in or caused by his active duty service. Based on a careful review of all of the evidence, the Board finds that the preponderance of the evidence weighs against finding in favor of the Veteran's claim for a respiratory disability, to include emphysema and pulmonary fibrosis. The evidence does not show that the Veteran was exposed to asbestos during his active duty service. Furthermore, the Veteran's in-service and post-service treatment records are silent for any complaints of respiratory problems, except for a single reference to improved breathing problems in 2009, after he had stopped smoking two years earlier. The Board finds that the August 2014 VA examiner's opinion is the most probative evidence of record. The Veteran has current diagnoses for emphysema and pulmonary fibrosis based on radiological findings. The August 2014 VA examiner specifically did not diagnose asbestosis. His emphysema was attributed to his long history of cigarette smoking. Notably, the August 2014 VA examiner found that the Veteran had idiopathic pulmonary fibrosis, the nature of which means that it usually has no known cause. Nevertheless, the Board has already determined that the Veteran was not exposed to asbestos. Moreover, the Veteran has not contended, and the evidence does not otherwise show, that the Veteran had any respiratory problems during his military service that could be related to his current respiratory diagnoses. Therefore, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a respiratory disability, to include emphysema and pulmonary fibrosis. As such, the benefit-of-the-doubt rule does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER Entitlement to service connection for a respiratory disability, to include emphysema and pulmonary fibrosis, and to include as due to asbestos exposure. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs