Citation Nr: 1613411 Decision Date: 04/01/16 Archive Date: 04/13/16 DOCKET NO. 10-28 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a respiratory condition claimed as asthma, to include as due to exposure to asbestos and/or herbicides. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran had active service from November 1968 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied service connection for asthma. The Board has recharacterized the Veteran's service connection claim for asthma more broadly to include any respiratory disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). In April 2015, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. FINDING OF FACT The Veteran's respiratory disability did not have its onset in service, is not related to asbestos or herbicide exposure, and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.308, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist The Veteran's Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A letter sent to the Veteran in October 2007 provided compliant notice. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes VA treatment records, Social Security Administration Records, a VA examination report, and evidence submitted by the Veteran, including his lay statements. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In fact, on numerous occasions, the Veteran has indicated that he received his medical treatment exclusively at VA medical facilities. See April 2015 Hearing Transcript; February 2008 Statement in Support of Claim. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran was afforded a VA examination in September 2015. The Board finds the examination adequate because, as will be shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and describes the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). A June 2015 Board decision remanded the case for procurement of VA medical treatment records from Biloxi, Las Vegas, and California VA medical centers from the 1980s. The Board instructed the RO to schedule a VA examination. Treatment records from Las Vegas and Palo Alto VA medical centers were requested and associated with the record. The RO also requested additional records from the Biloxi VA Medical Center and received a response that all records created between the 1980s and April 2002 had been destroyed. Notice of the same was provided in the November 2015 supplemental statement of the case. A Report of General Information in November 2015 shows the Veteran received and reviewed the supplemental statement of the case in November 2015. Thus, no further notice regarding efforts to obtain VA treatment records is necessary. The Board finds that the RO substantially complied with the remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran testified during a Board hearing in April 2015, at which time the undersigned explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the Veterans Law Judge's duty 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). Neither the Veteran nor his representative has contended, and the evidence does not otherwise show that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. General Legal Principles The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issue on appeal. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). A veteran must have been present on the landmass or inland waterways of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure. Haas v. Peake, 525 F.3d 1168 (2008). Service on a deep-water naval vessel in waters off the shore of Vietnam does not constitute service in the Republic of Vietnam. Id. at 1193-97; see also Gray v. Mcdonald, No. 13-3339, 2015 WL 1801450 (Vet. App. Apr. 23, 2015). A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). If a Veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a Veteran must nonetheless establish by a preponderance of the evidence that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. 48 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the Veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Presumption of Soundness As an initial matter, there is evidence in the record to suggest that the Veteran's respiratory illness may have existed prior to service. The Veteran's service treatment records show that in May 1968, a diagnosis of asthma was indicated, and he was rejected for induction as not medically qualified. Nevertheless, the Veteran was ultimately accepted into service, and a diagnosis of asthma was not noted on his October 1968 entrance examination. Additionally, the Veteran's in-service treatment records and separation examination are silent for any complaints or treatment for asthma or any other respiratory disorder. Crucially, the September 2015 VA examiner found that there was no clear and unmistakable evidence to suggest that the Veteran had asthma or any respiratory condition that existed prior to his period of service. Although there is evidence to suggest that the Veteran's respiratory disability may have preexisted service, the evidence does not rise to the level of clear and unmistakable evidence. See 38 U.S.C.A. § 1111. Therefore, the presumption of soundness at service entrance has not been rebutted. 38 U.S.C.A. § 1111. The Board will analyze the Veteran's claims of service connection for a respiratory disability under a direct service connection theory. Analysis The Veteran claims that his respiratory disability is related to his military service. He attributes his condition to his exposure to asbestos and Agent Orange during his service in the Republic of Vietnam. As noted above, the first element of service connection requires medical evidence of a present disability. Here, a current diagnosis has been established. The medical evidence of record clearly shows that the Veteran has a diagnosis of asthma and Chronic Obstructive Pulmonary Disease (COPD). See September 2015 VA Examination Report. Thus, the issue that remains disputed is whether or not the Veteran's current disability is related to service. The Veteran asserts that asbestos exposure in-service caused his respiratory disability. Specifically, the Veteran reports that he was exposed to asbestos during service while serving as a mechanic and repairing brake shoes and brake drums. The Board notes that the Veteran's personnel records indicate that his military occupational specialty was a mechanic. See DD 214. Thus, in-service exposure to asbestos is substantiated. The lay evidence of record, however, as to the onset of the Veteran's respiratory disability is inconsistent. During the April 2015 hearing, the Veteran testified that while in Vietnam, he experienced breathing difficulties and complained to the medic. He indicated that the medic told him his breathing difficulty was probably related to heat and rain and provided him with respirators and inhalers. Further, the Veteran reported that he experienced respiratory symptoms right after separation in 1971 and sought treatment from VA facilities. However, during his VA examination, the Veteran reported that he started having occasional episodes of cough, shortness of breath and wheezing on or around 1980. See September 2015 VA Examination Report. He stated that he was told he had bronchitis during these episodes and that he would occasionally be given an inhaler and antibiotics for these episodes. He reported that these episodes began to increase and occur more often and that in the 1980's he reports being diagnosed with "asthma" and regularly using inhalers for asthma starting in the 1980's. The examiner also noted, "[The] Veteran had surgery to his neck on or around January, 1990 and then had surgery on his back on or around June 1990. The History and Physical Exam performed upon admission to the hospital prior to these surgeries do not indicate a diagnosis of asthma, COPD or any other respiratory condition. Any respiratory condition such as asthma would be important to include or identify prior to undergoing general anesthesia for surgery. In addition, the medical records from this time do not list any medications that would be used for asthma, COPD or other respiratory conditions. Furthermore, records submitted to the Social Security Administration for disability evaluation do not list any respiratory health conditions or medications. [The] Veteran's medical records do reflect a diagnosis of COPD on or around 2007. Therefore, the evidence best supports a diagnosis of COPD, which includes and is often labeled as asthma, on or around 2007." The Veteran's service treatment records and separation examination are silent for any treatment or complaints of a respiratory disability. With respect to asbestos exposure, the September 2015 VA examiner stated, "Asbestos exposure may cause Asbestosis of the lungs. This is a condition causing pulmonary fibrosis, or scarring, of the lung tissue. Typical symptoms include shortness of breath with exertion, but cough, wheezing and sputum production are not usual symptoms. The latter symptoms are more consistent with cigarette smoking and COPD. In addition, patients with respiratory conditions from asbestos exposure typically show no evidence of airflow obstruction on their pulmonary function testing (PFT). [The] Veteran clearly has moderate-severe obstruction on his PFTs." The Board is persuaded by the VA examiner's reasons for finding that the Veteran's description of the onset of symptoms and chronicity of symptoms is inconsistent with the nature of the claimed disorder, and consequently, the Veteran's statements regarding the same cannot be deemed credible. As the medical evidence of record persuasively shows that the Veteran's respiratory disability did not have its onset in service and is not related to asbestos exposure in service, service connection under these theories of entitlement are not warranted. The Veteran also asserts that his respiratory disability is caused by in-service herbicide exposure. The Veteran's testimony and personnel records confirm his service in the Republic of Vietnam. See April 2015 Hearing Transcript. Therefore, the Board presumes that the Veteran was exposed to herbicides during service. According to 38 C.F.R. § 3.309(e), certain diseases may be presumed to be related to exposure to herbicides; the Veteran's asthma and COPD are not among the listed diseases. Therefore, this disability may not be presumed to be related to herbicide exposure. However, service connection based on direct causation may still be established. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The medical evidence of record does not provide any evidence that the Veteran's in-service herbicide exposure is related to his respiratory disability. The September 2015 VA examiner opined, "[The] Veteran's COPD/asthma are not at least as likely as not incurred in or otherwise attributable to his service including exposure to asbestos and/or herbicides. [The] Veteran's COPD/asthma are more likely than not related to his longstanding cigarette use. [The] Veteran has been a regular smoker during most of his life. He reports quitting in 1978 for 5 years because of the birth of his daughter. Otherwise, he acknowledges smoking for most of his life. His medical records do reflect numerous attempts at counseling Veteran to quit smoking. He eventually quit in 2013." The examiner cites to medical treatises to support the premise that COPD includes conditions such as asthma and that the most important risk factor for developing COPD is cigarette smoking. The examiner further indicates that about 80 percent of patients with COPD in the United States have a history of cigarette smoking. See September 2015 VA Examination Report. In light of the foregoing, the Board finds that the competent medical evidence of record persuasively shows that the Veteran's respiratory disability did not have its onset in service, is not related to in-service asbestos exposure, and is not related to in-service herbicide exposure. In fact, the preponderance of the evidence shows that long term cigarette smoking is the more likely cause of the Veteran's respiratory disability. The Board finds the VA examiner's opinions adequate and highly probative to the question at hand. The examiner, a physician, possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided adequate rationales for his opinions, and his opinions were based on an examination and interview of the Veteran. The examiner also reviewed the Veteran's claims folder, which contained his service treatment records and post-service medical evidence. It is clear that the examiner took into consideration all relevant factors in giving his opinions. The Board notes that the only contrary nexus opinion is that of the Veteran. It is well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disorder is a matter that generally requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Here, the Veteran is not competent to opine as to the etiology of his respiratory disability because the question presented here - the relationship between a respiratory disability, asbestos exposure, and herbicide exposure - is medically complex. Thus, the specific medical issue in this case falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In summary, the Board finds that the preponderance of the competent and probative evidence indicates that the Veteran's respiratory disorder is not related to service. Accordingly, service connection for a respiratory disability is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory condition claimed as asthma, to include as due to exposure to asbestos and/or herbicides is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs