Citation Nr: 1605020 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 12-07 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a respiratory disorder, to include as a result of exposure to asbestos. REPRESENTATION Veteran represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1978 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case was previously before the Board in September 2015, when it was remanded for additional development. FINDING OF FACT The most competent and persuasive medical evidence weighs against a finding that any of the Veteran's currently diagnosed respiratory conditions were incurred in or aggravated by in-service asbestos exposure or any other incident of his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was satisfied in December 2009 and February 2010 letters to the Veteran. The duty to assist has also been satisfied. The Veteran's service treatment records, post-service medical records, Social Security Administration records, and lay statements from the Veteran are in the claims file and were reviewed in connection with his claim. The Veteran has not identified any additional outstanding evidence in this matter that could be used to substantiate his claim. The Board remanded the claim for further development in September 2015 and is satisfied that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded a VA examination and opinion in December 2013, and the examiner provided an addendum opinion in October 2015 on the etiology of the Veteran's diagnosed respiratory disorders. Taken together, the VA examination and opinions are adequate to adjudicate the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. II. Service Connection The Veteran asserts that he currently has a respiratory disorder that has manifested as a result of his period of active service, to specifically include as a result of exposure to asbestos while serving as a yeoman on a Navy ship. He contends that he spent a year performing duties such as grinding and removing paint while his assigned ship was being renovated. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1, part IV, Subpart ii, Chapter 2, Section C (August 7, 2015). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (b). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (d). The M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (g). Service personnel records show that the Veteran served on the USS Orion and his primary specialty number was "YN-0000" during his service in the Navy. The RO noted in its January 2012 Statement of the Case that the Veteran's duties as a yeoman and personnel man were shown to have a minimal probability of exposure to asbestos. In the July 2015 Supplemental Statement of the Case, the RO conceded asbestos exposure based on the Veteran's assignment as a yeoman in the Navy. A review of the Veteran's service treatment records show the Veteran received treatment for upper respiratory infections in November 1978, June 1979, and March 1980. In April 1979, he was treated for reported chest pain. Upon examination, his lungs were found to be clear and an EKG was within normal limits. The Veteran's lungs and chest were found to be normal on his August 1978 entrance examination into the Navy, and no respiratory condition was noted in the examination report. The Veteran has denied in his Reports of Medical History of ever having asthma, shortness of breath, pain or pressure in his chest, or chronic cough. See Reports of Medical History dated August 1978, June 1981. The Veteran's June 1981 separation examination noted normal clinical findings of his lungs and chest, and no respiratory condition was noted on the examination report. In an October 1992 VA general medical examination, the Veteran was noted to smoke a pack of cigarettes a day. There was no tuberculosis or asthma found, and the Veteran's lungs were clear to auscultation or percussion. A January 2000 medical record notes the Veteran's history of smoking one pack a day for the past 23 years. The Veteran was counseled about the risk and benefit of cessation and avoiding second-hand smoke. He refused referral for smoking cessation classes but verbalized his understanding of the need to quit. The Veteran denied experiencing any respiratory symptoms. A March 2009 private medical treatment record from M. Baker, D.O., noted that a CT scan of the chest showed the Veteran had developed mild mediastinal lymphadenopathy, nonspecific, with a localized area of pleural scarring at the right lung base. Pulmonary function testing revealed a mild obstructive lung defect. A chest x-ray was found to be normal. Upon examination, the Veteran's lungs were clear. There were no rales, rhonchi, or wheezes. He was diagnosed with COPD and hypertension. There was no diagnosis of asbestosis. An October 2011 VA treatment record notes the Veteran underwent pulmonary function testing in July 2011. The treatment record notes an acceptable quality test which revealed "very mild obstruction, partly reversible, consistent with smoking history, high by HbCO." The report notes to suggest to the Veteran smoking cessation to avoid further decline in lung function. An April 2012 private treatment record from Dr. Baker reflects that the Veteran was admitted to a community hospital for complaints of experiencing shortness of breath for the past three months. The hospital report notes a discharge diagnosis of acute bronchitis, exacerbation of COPD, shortness of breath, chronic tobacco use and possible early history of asbestosis. The examining doctor noted a "significant past history of lung difficulties." The examination report notes the Veteran has been non-compliant with his medications and he has a history of smoking at least a pack per day of tobacco products for the past 25 years. A computed tomography (CT) scan of the chest conducted in April 2012 revealed minimal bibasilar platelike atelectatic changes or scarring. There were no significant or acute pathologic CT chest findings. A January 2013 VA treatment record notes the Veteran underwent pulmonary function testing in November 2012. The treatment record notes an acceptable quality test which revealed "mild and stable obstruction, consistent with smoking history, heavy by HbCO." Further, there was mold impairment in oxygenation, and the report notes that smoking cessation should be suggested to the Veteran to avoid further decline in lung function. An April 2013 private treatment record notes diagnoses of COPD, emphysema, and chronic bronchitis. Private outpatient treatment records from F. Hamadeh, M.D., dated in July 2013, show that the Veteran was assessed with mediastinal adenopathy with mild to moderate uptake; noncalcified right lower nodule, unlikely to be malignant; moderate chronic obstructive pulmonary disease; history of positive purified protein derivative (PPD) skin test; smoker for 25 years; and a history of exposure to asbestos in the past. An October 2013 surgical pathology report from the Mayo Clinic notes the Veteran had a lesion in the right lower lobe of his lung from which a prior needle biopsy was taken. The report notes that a specific diagnosis of the needle biopsy was unable to be made. The Veteran underwent a lung wedge resection of the nodule which revealed an old necrotizing granuloma and surrounding background changes consistent with smoking. The report states that it is unlikely that a cause of the granuloma will ever be known. The report also notes that the surrounding lung tissue showed mild bronchiolar inflammatory changes and increase in pigmented macrophages consistent with respiratory bronchiolitis and consistent with the Veteran's smoking history. A letter from Dr. Baker dated in November 2013 shows that the Veteran was said to have chronic obstructive pulmonary disease and granuloma with a history of asbestos exposure in service. Dr. Baker was unable to definitively say that his pulmonary condition was 100 percent caused by his asbestos exposure, however, he did think there was "potential" that his chronic obstructive pulmonary disease and pulmonary difficulties were certainly exacerbated by the previous asbestos exposure and his chronic tobacco use. A VA examination report dated in December 2013 shows a diagnosis of chronic obstructive pulmonary disease and granuloma. The examiner indicated that the Veteran had reported a history of asbestos exposure, and that he had smoked from 1989 until about two months prior to the examination. Following examination and review of the record, the VA examiner concluded that the Veteran did not have a confirmed diagnosis of asbestosis or asbestos-related illness. The examiner found no documentation in the claims file of a diagnosis of an asbestos-related illness. While there was a note of a possible early history of asbestosis, there was no indication of a diagnosis. The most definitive means of confirming a diagnosis of asbestosis was said to be by lung biopsy. A lung wedge resection conducted in September 2013 had not shown evidence of asbestosis. The examiner did note that the Veteran had evidence of lung findings consistent with smoking and a granuloma mostly likely secondary to a previous infection with histoplasmosis. Additional clinical studies, to include a chest CT study, were not consistent with a diagnosis of asbestosis, and pulmonary function tests were consistent with chronic obstructive pulmonary disease secondary to smoking and not asbestosis. The examiner concluded that the Veteran did not have asbestosis and, therefore, there was no asbestosis related to his presumed exposure to asbestos in service. Given the diagnoses of additional respiratory disorders in the Veteran's post-service medical records, the Board remanded the claim in September 2015 for an addendum opinion on whether any diagnosed respiratory condition was related to the Veteran's period of active service, to include his treatment for upper respiratory infections in service or his treatment for chest pain. In October 2015, the VA examiner who conducted the December 2013 VA examination of the Veteran provided an addendum opinion concluding that it was less likely than not that the Veteran had a diagnosed respiratory condition that was incurred in or caused by his claimed in-service injury, event or illness. In support of this conclusion, the examiner noted that the Veteran's claims file in VBMS was reviewed, including his service treatment records with specific attention to the dates noted in the prior Board remand request. The examiner noted that an upper respiratory infection (URI) was an acute, self-limiting infection involving the upper airways and not the lungs (which constitute the lower airways). The VA examiner stated that these types of infections were common among the general population, especially in environments of persons with close contacts. Further, it was not uncommon for a person to experience one or more of these infections in a one-year period of time. The examiner noted that the Veteran was documented to have three such episodes of an upper respiratory infection over a three-year period. This was not unusual and did not indicate any chronic respiratory disease. The Veteran was also seen for a complaint of left-sided chest pain in April 1979 with no specific cause established. There was no documentation of persistent or chronic chest pain or development of any other related symptoms. The VA examiner stated that a one-time occurrence of chest pain such as this in a young, healthy adult did not indicate a significant clinical process. Further, the examiner stated that a review of the Veteran's service treatment records did not indicate any documentation of lower respiratory (lung) problems during service or in the year after service. The examiner noted the Veteran's June 1981 separation physical showed no problems and documents chest x-ray findings of "no active disease." The VA examiner stated that this clinical documentation did not support that the Veteran had the onset of a respiratory disorder while in service or in the immediate post-service period. Further, the VA examiner stated that the Veteran's current respiratory problems were COPD, granuloma, mediastinal adenopathy and noncalcified lower lung nodule. There was no objective evidence that any of these conditions had their onset while the Veteran was in service. There was no documentation of diagnosis, clinical findings or treatment of any of these conditions while the Veteran was in service. The examiner noted that the Veteran had a history of asbestos exposure which was addressed in a prior opinion. Based on the present information, the examiner stated there was no objective evidence of exposure while in service to other agents, infections, or inflammatory conditions that could have caused his present lung conditions of lung nodule, mediastinal adenopathy, possible sarcoid, and possible histoplasmosis. The examiner further stated the Veteran had COPD that was most likely due to his tobacco smoking. The Board finds the December 2013 and October 2015 VA examiner's opinions concerning the etiology of the Veteran's various respiratory conditions are afforded significant probative value. The opinions were rendered following a complete review of the Veteran's claims file and included well-reasoned rationales supporting the examiner's conclusions. The examiner addressed the Veteran's assertion as to the origin of the disability, and provided a rationale for the conclusions reached based on the record and the examination findings. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Dr. Baker's opinion that there was "potential" that the Veteran's chronic obstructive pulmonary disease and pulmonary difficulties were exacerbated by the previous asbestos exposure is too speculative to establish a nexus. Obert v. Brown, 5 Vet. App. 30 (1993). There is no medical opinion to the contrary in the record concerning the etiology of the Veteran's various respiratory disorders. After carefully reviewing the relevant evidence, the Board concludes that service connection is not warranted for any of the Veteran's variously diagnosed respiratory disorders. The evidence does not support a finding that any of his diagnosed conditions are related to any incident of service, including his claims of asbestos exposure. The preponderance of the evidence weighs against a finding that the Veteran's respiratory disorder arose in or is otherwise related to active service. The Board acknowledges the Veteran's belief that his current respiratory disability is related to asbestos exposure during his military service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). In sum, the weight of the competent evidence of record is against a nexus between the Veteran's currently diagnosed respiratory conditions and his active duty service, including his claims of in-service exposure to asbestos. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a respiratory disorder is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs