Citation Nr: 1606900 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 13-21 691A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1962 until September 1964. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2011 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for "a lung condition (also claimed lung scarring and asbestosis)." In his appeal (VA Form 9), received in August 2013, the Veteran requested a hearing at the RO before a Veterans Law Judge. However, in a statement, dated in August 2014, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.702(e) (2015). Accordingly, the Board will proceed without further delay. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran does not have a lung disability due to his service. CONCLUSION OF LAW A lung disability was not caused or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that service connection is warranted for a lung disability. He argues that during his service aboard the U.S.S. Donner, he performed duties as a deck seaman for two years, during which time he took care of the ship's decks (stripping, chipping, sanding, and painting) without a face mask or any type of protection. He argues that the paints he used contained lead and are no longer used, as they are hazardous, and that his ship was built prior to World War II and had an air circulation system that re-circulated asbestos particles that were used in its construction as a fire-deterrent, and as insulation. He further asserts that the linoleum in the living quarters and mess hall was made with asbestos (how he is aware of this is unclear), and that they were in bad condition. See e.g., Veterans "statement in support of claim" (VA Form 21-4138), dated in July 2011. The Board notes that additional medical evidence has been received since the issuance of the statement of the case which is not accompanied by a waiver of RO review. However, this evidence is cumulative in nature, discussed infra, and the Board has determined that this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304(c) (2015). Accordingly, a remand for RO consideration is not required. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. To the extent that a claim has been presented based on exposure to asbestos during service, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, (VBA Manual M21-1), IV.ii.2.C, provides information concerning claims for service connection for disabilities resulting asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VBA Manual M21-1 defines "asbestos" as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Note: Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the U.S. since the 1970s. VBA Manual M21-1, IV.ii.2.C.2.a. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques (scars of the lining that surrounds the lungs), mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. Note: The biological actions of the various fibers differ in some respects, in that chrysotile products have their initial effects on the small airways of the lung cause asbestosis more slowly, and result in lung cancer more often, and crocidolite and amosite, have more initial effects on the small blood vessels of the lung, alveolar walls, and pleura, and result more often in mesothelioma. VBA Manual M21-1, IV.ii.2.C.2.b. Specific diseases that may result from exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis gastrointestinal cancer that develops in 10 percent of persons with asbestosis urogenital cancer that develops in 10 percent of persons with asbestosis, and mesothelioma that develops in 17 percent of persons with asbestosis. Important: All persons with significant asbestosis develop cor pulmonale (enlargement of the right ventricle of the heart) and heart disease secondary to disease of the lung or its blood vessels. Those persons who do not die from cancer often die from heart failure secondary to cor pulmonale. Disease-causing exposure to asbestos may be brief, and/or indirect. Notes: Current smokers who have been exposed to asbestos face an increased risk of developing bronchial cancer. Mesotheliomas are not associated with cigarette smoking. VBA Manual M21-1, IV.ii.2.C.2.c. Some of the major occupations involving exposure to asbestos include 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 products, such as roofing and flooring materials asbestos cement sheet and pipe products, and military equipment. Note: Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. VBA Manual M21-1, IV.ii.2.C.2.d. Many people with asbestos-related diseases have only recently come to medical attention because the latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease. Note: The exposure may have been direct or indirect; the extent and duration of exposure is not a factor. VBA Manual M21-1, IV.ii.2.C.2.f. The Veteran's personnel records show that following his basic training, his rate was SN (seaman), and that he primarily served aboard the U.S.S. Donner (from May 1963 to September 1964, more than 50 years ago). His discharge (DD Form 214) shows that his military occupation specialty was "BM-0100" (boatswain's mate), with a related civilian occupation of "deckhand." The Veteran's service treatment reports do not contain any relevant findings, complaints, or diagnoses, with the exception of a July 1963 X-ray report, which notes a mass density at the right lower lung field, a fractured rib with callus formation, clear lung fields, and an impression of old fracture of the 9th rib. The Veteran's separation examination report, dated in September 1964, shows that his lungs and chest were clinically evaluated as normal. Post-active-duty service treatment records include an examination report associated with Naval Reserve duty, dated in July 1965, which shows that his lungs and chest were clinically evaluated as normal, and that a chest X-ray was within normal limits. In an associated "report of medical history," the Veteran denied a history of shortness of breath, asthma, or chronic cough, providing some factual evidence against his own claim. VA progress notes, dated beginning in 2007, show complaints of symptoms that included cough, hemoptysis, and "dyspnea with exertion, or wheezing," with a history of asbestos exposure, and a notation of possible asbestosis. A May 2011 report notes asthma, with daily use of an albuterol inhaler. Other post-active-duty medical evidence includes a statement from I.S., M.D., dated in September 2010, which notes the following: in March 1992, the Veteran underwent testing that included a limited physical examination, simple breathing tests (spirometry and DLCO), and a chest X-ray. The examination was "for screening and was not comprehensive," and its findings "should be considered preliminary." His breathing tests were normal. There was evidence of scar tissue. He had changes in his lungs which were consistent with the type of injury and disease that can be seen after asbestos exposure. A VA respiratory examination report, dated in January 2011, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes the following: the Veteran is a former smoker; he quit in 2002. A chest X-ray showed hyperinflation, with no active disease. A December 2010 pulmonary function test (PFT) resulted in an impression of mild restrictive ventilatory defect with normal diffusing capacity. The diagnosis portion of the report notes "asbestos exposure per VA Form 2507, not asbestosis," and minimal restrictive ventilatory defect per PFT, undetermined etiology. This finding provides more evidence against this claim, clearly indicating that the Veteran does not have asbestosis. A more precise diagnosis could not be rendered as there is no objective data to support a more definitive diagnosis. There is no objective evidence of asbestosis. A diagnosis of asbestosis depends on a history of exposure to asbestos dust, a latency period of at least 10 years, and evidence of diffuse fibrosis and pleural plaques by chest X-ray or CT (computerized tomography) scan. A statement from W.D., M.D., dated in April 2012, shows that the Veteran is noted to have a history that includes employment as a sheet metal worker between 1965 and 2004 at multiple job locations that included asbestos products (specific job sites omitted). As a sheet metal worker, he was exposed directly to asbestos product and insulation that he potentially inhaled and ingested. He describes working in, and adjacent to, areas actively involved in pipefitting and welding during various times in his work history. The Veteran smoked up to 2 packs of cigarettes per day for 40 years. He quit smoking in 2000. His symptoms include significant shortness of breath, constant coughing, and wheezing, and pleuritic-type symptoms with respiration. He is on an albuterol inhaler. An October 2011 chest X-ray resulted in findings of bilateral interstitial fibrosis in both the mid and lower lung zones with a 1/1 profusion. It was a Grade 1 quality X-ray. Bilateral chest wall pleural plaques were also noted; there was bilateral lung involvement. The impression, based within reasonable medical probability, is that the Veteran has bilateral asbestos-related lung disease. A VA respiratory disability benefits questionnaire (DBQ), dated in June 2013, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes the following: the Veteran had been diagnosed with asbestosis in the past. The Veteran was noted to have smoked 2 packs of cigarettes per day for 40 years. A February 2012 chest X-ray showed bilateral interstitial fibrosis, bilateral chest wall pleural plaques, and nodular thickening on the right chest wall, rule out pleural mass. A June 2013 PFT showed that his DLCO (diffusing capacity of the lung for carbon monoxide) value (90 percent of predicted, pre-bronchodilator, and greater than 125 percent of predicted post-bronchodilator when corrected for lung volume) was not decreased, therefore, he does not meet the C&P (VA Compensation and Pension) criteria for a diagnosis of asbestosis. The Veteran has a mild restriction, as evidenced by reduced TLC (total lung capacity) of 75 percent, and reduced FVC (forced vital capacity) of less than 75 percent, with a normal DLCO of 90 percent. His restriction is not due to obesity, based on the calculation of his weight in kilograms divided by his height in centimeters. The diagnosis portion of the report states that there is no objective evidence of claimed asbestosis per PFT, and that there was mild restriction, per PFT, that was responsive to bronchodilator. In order to prove asbestosis, all of the following must be present: 1) restriction: decreased FVC, 2) imaging: pleural plaques, and 3) abnormal PFT: i.e., restriction, decreased FVC, decreased TLC, decreased DLCO, normal FEV1 (forced expiratory volume in one second) /FVC ratio. In June 2013, the RO requested a supplemental opinion from the examiner as to whether the Veteran's mild restriction was the result of asbestos exposure in service. In an addendum, dated in June 2013, the June 2013 VA examiner stated that the cause of the Veteran's restriction is unknown, and that, "It would only be mere speculation to opine whether the mild restriction, as evidenced by reduced TLC and reduced FVC, and pleural plaques, are a result of asbestos exposure in service from duties as a deckhand, water transporter, and boatswain's mate." A statement from J.P., a business manager for a sheet metal workers' union, dated in July 2013, shows the following: the Veteran's work environment during his career with the union had been researched. The author had worked with the Veteran, and vast majority of the Veteran's experience was in a shop environment/inside fabrication shops. The author has been a union representative for 22 years and can attest to the fact that the Veteran's work records indicated that he primarily worked for local contractors and as an experienced shop fabricator, and that he spent the majority of his work time in that segment of his trade. Although he and the Veteran also worked on a few paper mill jobs and commercial HVAC duct jobs over the years, the Veteran was most often assigned to shop work. Private reports from Pulmonary and Critical Care Consultants of Jacksonville (PCCC), dated between 2014 and 2015, note a history of asbestosis, smoking 35 pack/years with cessation of smoking in 14 years ago. An October 2011 X-ray was noted to show bilateral interstitial fibrosis consistent with asbestosis. A February 2014 CT scan noted calcified right-sided pleural plaques. An assessment notes asbestosis, that the Veteran was evaluated for asbestos-related lung injury and for workers' compensation in the past, and that he had SOB (shortness of breath) probably due to underlying COPD (chronic obstructive pulmonary disease), although he had a normal PFT. The Board finds that the claim must be denied. As an initial matter, the Veteran's rate at all times following basic training was SN (seaman), and this indicates no more than minimal exposure to asbestos. VBA Manual M21-1, IV.ii.1.I.3.c. Although he has asserted that his post-service employment did not involve exposure to asbestos, and submitted a statement from a union official in support, the April 2012 report from Dr. W.D. contains very detailed and specific evidence, to include a list of specifically identified job sites, which indicates that he has a long post-service occupational exposure to asbestos. The PCCC report also indicates that the Veteran has previously been involved in litigation involving his lung disability in association with his post-service employment. This evidence is considered more probative on the issue of post-service occupational exposure to asbestos than the statements that support his claim. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board further finds that the evidence is insufficient to show that the Veteran currently has asbestosis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In this regard, while a number of private reports note asbestosis, some of them are quite dated, and none of them discuss, or appear to have applied, the C&P criteria. There is one notation of possible asbestosis in the VA progress notes. This notation is afforded no probative value, as it is equivocal in its terms, and it is not shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history. In contrast, the January 2011 and June 2013 VA examination reports both show that the examiners concluded that the Veteran did not meet the C&P criteria for asbestosis. While there is some evidence that supports the Veteran's claim, these reports are considered highly probative, as they are shown to have been based on a review of the Veteran's claims file, and as they are accompanied by sufficient explanations and findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that asbestosis is not shown. The best evidence, while not all evidence, provides evidence against this finding. The claim is presumed to included lung disabilities other than asbestosis. However, the Veteran has not claimed to have any respiratory symptoms while in service, nor is he shown to have received any relevant treatment during service, apart from findings of an old rib fracture, which are not shown to have impacted his lung functioning. Thus, he is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a) in association with this claim, and the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker. In this regard, the Veteran is shown to have a long history of heavy smoking, and some occupational exposure to asbestos and other airborne contaminants, and the earliest post-service medical findings of a respiratory disability are dated in 1992. This is about 28 years after separation from service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) (the Board may consider the absence of medical complaints or treatment over prolonged periods). There is no competent opinion in support of the claim. To the extent that the June 2013 VA examiner was unable to provide an etiological opinion as to the Veteran's "mild restriction" without resorting to mere speculation, current regulations provide that service connection may not be based on a resort to speculation, or even a remote possibility. See 38 C.F.R. § 3.102 (2015); see also Jones v. Shinseki, 23 Vet. App. 382 (2010); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996). In this regard, the examiner was able to rule out obesity as the cause of the Veteran's mild restriction, and her discussion of the evidence shows that she indicated that the Veteran's PFT results and the other evidence of record were insufficient to provide the basis for any further opinion. Her conclusion is also consistent with the examiner's conclusion in the January 2011 VA examination report, which notes that, "A more precise diagnosis could not be rendered as there is no objective data to support a more definitive diagnosis." The opinion is therefore found to be sufficient. Jones, 23 Vet. App. at 383. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lung disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran's service treatment reports and post-service medical records have been discussed. The Veteran has been afforded two examinations. Asbestosis is not shown, and the Board has concluded that a current lung disability is not shown to be related to the Veteran's service. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed condition due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in September 2010, January 2011, and July 2014, of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements. Nothing more was required. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records The Veteran has been afforded two examinations. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a lung disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs