Citation Nr: 1622519 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 14-41 266A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a pulmonary disorder, to include mesothelioma and asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to November 1945 and from September 1950 to September 1951. In order to encompass all claimed symptoms of disability, the Board of Veterans' Appeals (Board) has broadened and reframed the issue of service connection for mesothelioma to entitlement to service connection for a pulmonary disability, to include mesothelioma and asbestosis, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran is currently diagnosed with asbestosis. 2. During service, the Veteran was aboard a ship when a bomb exploded, and was exposed to some quantity of asbestos on that one occasion. 3. The Veteran's duties during service are not consistent with duties that come into contact with asbestos. 4. The Veteran's diagnosed asbestosis manifested many years after service separation and is not causally or etiologically related to service, to include an in-service explosion. CONCLUSION OF LAW A pulmonary disorder, to include mesothelioma and asbestosis, was not incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted 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). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has been diagnosed with asbestosis, which is not a "chronic disease" under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) or manifesting within one year of service separation at 38 C.F.R. § 3.307 (2015) do not apply. The Veteran essentially contends that asbestosis is related to active service, specifically, exposure after a bomb exploded while stationed on the USS Wasp in March 1945, which he suggests would have released a large amount of asbestos into the air. See July 2013 informal hearing presentation. In an August 2012 statement, he wrote that mesothelioma began in January 2002. Initially, the Board finds that the Veteran is currently diagnosed with asbestosis. An October 2000 private examiner and the December 2015 VA examiner specifically diagnosed asbestosis. The Veteran has advanced on one occasion being diagnosed with mesothelioma; however, the record, including the October 2000 private treatment record and the December 2015 VA examination report, does not reflect a diagnosis of mesothelioma. Therefore, a pulmonary disorder of asbestosis but not mesothelioma is shown. Next, the Veteran was aboard the USS Wasp when a bomb hit in March 1945. In November 2015, the Joint Services Records Research Center (JSRRC) issued a formal finding that the USS Wasp sustained a "severe bomb hit" in March 1945. Service personnel records reflect that he was stationed on the USS Wasp, a Navy ship, in March 1945. For these reasons, the Board concedes that he was exposed to some quantity of asbestos on one occasion in March 1945. Other that the one exposure above, the Veteran's contentions concerning asbestos exposure in service are inconsistent with his occupational specialties and the places, types, and circumstances of his service since the weight of the evidence does not demonstrate a military occupational with high incidents of asbestos exposure, including mining, milling, insulation work, carpentry, construction, or manufacturing. 38 U.S.C.A. § 1154(a) (West 2014). Specifically, a November 1945 service personnel record from his first period of service reflects that the Veteran served as a light machine gun operator and the DD Form 214 notes a military occupational specialty of air traffic controller. Further, the November 1945 and September 1951 service separation physical examination reports note that the Veterans lungs and chest were clinically normal with normal chest X-rays. On an associated Report of Medical History from September 1950, he also denied asthma, shortness of breath, pain or pressure in the chest, and chronic cough. Additionally, no service documentation indicates that he may have had a pulmonary disability in service. As such, the record does not reflect treatment for or diagnosis of a pulmonary disorder or asbestosis during service or any symptoms reasonably associated with asbestosis in service. Nonetheless, an October 2000 private X-ray revealed findings consistent with a diagnosis of asbestosis, and the private examiner wrote that the asbestosis findings were consistent with a "significant occupational exposure history to asbestos dust." A reasonable reading of this opinion is that the Veteran had consistent exposure to asbestosis which weighs against the claim based on a single exposure in-service. The Veteran underwent a VA respiratory examination in December 2015, and an addendum opinion was obtained in February 2016. Together these reflect that, after a review of the claims file, including service treatment records, a history from the Veteran, and examination of the Veteran, the VA examiner was unable to state whether the Veteran's asbestosis was related to asbestos exposure during active duty without resorting to speculation. The examiner reasoned that she could not determine the quantity of asbestos released, if any, from the in-service explosion. She also found that the Veteran's asbestosis was likely caused by "severe asbestos exposure" post-service, including the self-reports of working as a flight controller for 14 years post-service in an "old building with asbestos all over the ceilings" where he reportedly had to wipe asbestos from desks, and, subsequently, 26 years of asbestos exposure while working a desk job with British Airways. The examiner further determined that the Veteran was in receipt of class action compensation, which was likely from a lawsuit for post-service employment asbestos exposure. The opinion and rationale reflect that the VA examiner specifically considered the history of an explosion in service. The Board acknowledges that providing a more definitive opinion would have been difficult given; however, the Veteran's asbestosis arose approximately 50 years after service, which the December 2015 VA examiner has attributed to post-service occupational exposure. Based on the above, the Board finds that service connection for asbestosis is not warranted. While the Veteran was exposed to some quantity of asbestos on one occasion in March 1945, both the October 2000 private examiner and the December 2015 VA examiner attributed asbestosis to post-service employment exposure, which is highly probative. The December 2015 VA examiner also reviewed the claims file, interviewed the Veteran, and conducted the appropriate testing. The December 2015 VA examiner had the requisite medical expertise to render a medical opinion regarding the etiology of the asbestosis, had sufficient facts and data on which to base the conclusion, and stated the bases supporting the opinion that the asbestosis is related to the post-service employment history, which includes compensation from a class action lawsuit, indicating significant post-service asbestos exposure. The Board finds the October 2000 private treatment record, December 2015 VA examination report, and corresponding February 2016 VA addendum, to be highly probative. Further, while the Veteran has contended that the currently-diagnosed asbestosis (or another pulmonary disability) was caused by an explosion, he is not competent to provide evidence of an etiological nexus between asbestosis, or any other pulmonary disability, and an explosion in service. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). The etiology of the Veteran's asbestosis is a complex medical question dealing with the origin and progression of the respiratory system, and asbestosis is a disorder diagnosed primarily on clinical findings and physiological testing. While he is competent to relate respiratory symptoms experienced at any time, he is not competent to opine on whether there is a link between asbestosis and active service, including the asserted explosion, because such a medical opinion requires specific medical knowledge and training that the Veteran has not been shown to possess. Finally, the Veteran submitted an article entitled "World War II: USS Wasp (CV-18)," which conveys that the ship he was stationed on sustained a severe bomb hit in March 1945. As discussed above, JSRRC issued a formal finding that the USS Wasp sustained a "severe bomb hit" in March 1945, and service personnel records confirm that he was stationed on the USS Wasp at that time; however, neither the article submitted by the Veteran, nor the JSRRC formal finding suggests a relationship between his asbestosis and the in-service explosion. As such, the article is accorded lesser probative weight and is outweighed by more specific medical opinion evidence pertaining to this Veteran, discussed above. For the reasons discussed above, the weight of the evidence demonstrates that the diagnosed asbestosis was not incurred in or otherwise caused by active service, to include an in-service explosion. As the preponderance of the evidence is against the claim for service connection for a pulmonary disorder, the benefit of the doubt doctrine is not for application, and the appeal is denied. Finally, VA satisfied its duty to notify and assist the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 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) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided notice in March 2011, prior to the initial adjudication of the claim in October 2011. He was notified of the evidence not of record that was necessary to substantiate the claim, VA and his respective duties for obtaining evidence, and VA's practices in assigning disability evaluations and effective dates. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. Second, VA satisfied its duty to obtain a medical opinion when required. Specifically, the Veteran was provided with a VA examination (the report of which has been associated with the claims file) in December 2015. The December 2015 VA examination report, with a February 2016 addendum opinion, is thorough and adequate and provides a sound basis upon which to base a decision with regard to this claim. The VA examiner personally interviewed and examined the Veteran (in December 2015), including eliciting a history, conducted a physical examination, and offered opinions with supporting rationale. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board remanded the appeal for further development in September 2015. A JSRRC formal finding was obtained, the Veteran underwent a VA examination in December 2015, and a February 2016 addendum opinion was issued, that, as discussed above, the Board finds were thorough and adequate and in compliance with the Board's remand instructions; therefore, there has been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). In sum, VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. ORDER Service connection for a pulmonary disorder, to include mesothelioma and asbestosis, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs