Citation Nr: 1618490 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 10-20 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis or other asbestos-related disease and/or chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1963 to March 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied, in part, the Veteran's claim of service connection for asbestosis. In June 2013, the Veteran and his wife presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge at the RO. A copy of the transcript is associated with the electronic record. The VLJ who conducted the hearing noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support his claims and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In November 2013 the Board remanded the case to the RO for further development and adjudicative action. In that remand, the Board recharacterized the claim of service connection for asbestosis to include all currently diagnosed pulmonary disorders. See Clemmons v Shinseki 23 Vet App 1 (2009). This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran does not have presumptive bronchiectasis or any asbestos-related disease. 2. The Veteran has objective medical evidence of COPD in the form of emphysema, which was first shown many years following discharge from service; and, is more likely than not related to years of cigarette smoking and less likely than not related to in-service asbestos exposure. CONCLUSIONS OF LAW A respiratory disorder, including but not limited to asbestosis and/or COPD was not incurred in service nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist At the outset, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence dated in October 2009, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. It is not alleged that notice was less than adequate. The Veteran's service treatment records are associated with the record and pertinent private and VA medical records have been secured. He was afforded VA pulmonary examinations in August 2012 and December 2013. The August 2012 examiner's finding of no current diagnosis of an asbestos-related disease; and, non-service-related COPD were based on review of the service treatment records, the VA treatment records (including June 2010 and August 2012 chest x-ray reports, and August 2012 pulmonary function test (PFT) results), private treatment records (including a June 2002 private evaluation which diagnosed an asbestos-related disease), and an interview with the Veteran. The December 2013 examiner's findings of no current diagnosis of asbestos-related disease; and, non-service-related COPD, were based on a review of the STRs, the VA treatment records (including chest x-ray reports from June 2010 and August 2012, August 2012 PFT results, and a June 2013 CT scan of the thorax/chest), the June 2002 private evaluation which diagnosed an asbestos-related disease), and an interview with the Veteran. The above examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The November 2013 remand directed the AOJ to obtain a VA examination to determine the likely etiology of all diagnosed respiratory disorders. The examiner was asked to address the findings in the June 2002 private opinion, and as noted above, the December 2013 examiner accomplished this task. Accordingly, the agency of original jurisdiction (AOJ) substantially complied with the November 2013 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran's representative argues that the December 2013 examination is not adequate with respect to the claim of service connection for COPD, and requests another examination. See April 2016 Written Brief Presentation. Specifically, the Veteran's representative asserts that the December 2013 examiner's opinion against a finding of service-connected COPD was based solely on a lack of evidence of an in-service diagnosis or in-service treatment for a lung disorder during service and during the years after his separation from service. While the Board is mindful that a lack of evidence in a Veteran's medical records, generally, may not be considered negative evidence, per se; the Board finds, as is discussed in greater detail below, that the VA medical opinions in this case are not based solely on a lack of evidence, but rather, are also based on the objective testing coupled with sound medical principals related to smoking risk and COPD. Accordingly, a new examination is not necessary to decide the claim on appeal. The appellant has not identified any pertinent evidence that remains outstanding with respect to this claim. VA's duty to assist is met. II. Service Connection - Pulmonary Disorder The Veteran seeks service connection for a pulmonary disorder, to include an asbestos-related disease, and/or COPD. The Veteran asserts that he was exposed to asbestos during service in the United States Navy when he spent a year in the Boston shipyards while his ship was being repaired and he recalled that all of the steam pipes were wrapped in the asbestos. Hearing Transcript, p. 5. The Veteran testified at his hearing that he believed he could have a duel diagnosis of asbestosis and COPD based on findings from a 2002 private examination and an August 2012 VA examination, but the VA examiner in August 2012 only addressed the COPD and not his claimed asbestos-related symptoms. Hearing Transcript, pp. 7-8. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2015). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2015); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including bronchiectasis, for example, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. A review of the Veteran's STRs is negative for complaints or findings related to any pulmonary disorder. The Veteran did not report chronic shortness of breath, wheezing, or other symptoms associated with a lung condition. Although the Veteran's service records do not specifically confirm that he was exposed to asbestos during service, the Board finds that the Veteran's service in the Navy in the 1960's both aboard ships and in the shipyards could have exposed him to asbestos. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols Ennis v Brown, 4 Vet App 523 (1993), McGinty v. Brown, 4 Vet App 428 (1993) Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure M21 1, VBA Adjudication Procedure Manual M21 1, part IV, Subpart ii, Ch 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). Additionally, the Board should consider whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service, post-service, occupational, or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. The Board finds that the Veteran's contentions regarding potential in-service exposure to asbestos are plausible. However, mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question in a claim such as this is whether disabling harm ensued as a result of any such asbestos exposure. The medical evidence must show not only a currently diagnosed disability, but also a nexus that is, a causal connection, between this current disability and the exposure to asbestos in service. To support his claim, the Veteran submitted a June 2002 private "Asbestos Evaluation Summary" prepared by Dr. W.E., MD. The summary refers to a July 2001 chest x-ray study with a film quality of 1 revealing multiple small irregular opacities noted in the lower lung zones bilaterally. There was no evidence of pleural plaques, thickenings or calcifications. The impression was parenchymal abnormalities consistent with asbestosis. The summary also referred to July 2001 pulmonary function testing (PFT) consistent with obstruction with a diminished DLCO. The assessment was history of occupational exposure to asbestos materials and an adequate latency period with current demonstration of parenchymal abnormalities on chest x-ray as a result of asbestos exposure. In addition, the examiner opined that the diminished diffusion coefficient on pulmonary function testing may represent physiologic correlation for the interstitial radiographic abnormalities. The examiner opined that the Veteran had clinically significant asbestos related disease. Notably, however, that summary notes the Veteran's self-reported history of years of occupational asbestos exposure but no reported military asbestos exposure. According to the report, the Veteran was exposed to asbestos while working for General Motors from 1979 through 1981, Federal Automotive Parts from 1981 through 1982, and Northwest Aluminum from 1982 through June 2002 as a maintenance worker and mechanic. He reported light exposure to asbestos materials. He reported direct contact with asbestos pipe insulation, boiler insulation, exterior siding, interior insulation, overhead droppings, blankets, gaskets, and brake shoes. His reported job tasks included removing, replacing, installing, patching, handling, hauling, delivering, loading, unloading, sweeping, clearing up, painting and taping asbestos materials. The Veteran reported exposure to large amounts of asbestos dust in the air. He was provided with a mask which he occasionally wore. The Veteran had been a smoker for 30 years and also admitted significant exposure to second hand smoke. Regardless of when and where the exposure took place, the 2002 examiner opined that the Veteran did have an asbestos-related disease based on the chest x-ray and the PFT. Notwithstanding any in-service asbestos exposure, the most probative evidence of record is against a finding that the Veteran has an asbestos-related lung disease. In August 2012, the Veteran underwent a VA examination, including a chest x ray. The examiner noted a diagnosis of COPD since 2009, with no evidence of acute cardiopulmonary disease. The examiner noted that no calcified pleural plaques were seen to diagnose a presence of asbestosis. The August 2012 examiner opined that the Veteran did not meet the criteria for the diagnosis of asbestosis, noting that the 2002 diagnosis, which came from an outside medical evaluation based on a nonspecific finding in a chest x-ray, was likely made in error because there was no evidence of changes from asbestos shown on the imaging. The examiner also noted that the Veteran's PFT results from August 2012 demonstrated obstructive lung disease consistent with COPD and opined that the COPD was due to the Veteran's long history of smoking. The Veteran contended at his hearing that this 2012 examination was much more cursory than his 2002 examination. The Veteran believed that the August 2012 diagnosis was made in error. A June 2013 VA CT of the thorax/chest revealed mild emphysema. The Veteran was afforded another VA examination in December 2013. The examiner opined that the Veteran's current disability of COPD was less likely than not incurred in or otherwise related to service. The examiner noted a significant history of occupational and military asbestos exposure; however, the Veteran's physical examination, which included a chest CT scan, was negative for evidence of asbestos-related lung changes. The examiner noted that there are no pleural plaques, pleural thickening or ground glass opacities that would be expected if the lungs had been affected by asbestos. The examiner noted that the inhalation of asbestos fibers can produce fibrosis, as seen in interstitial lung disease or pulmonary fibrosis which the Veteran did not demonstrate. The examiner acknowledged that the Veteran did have some pulmonary nodules, but no confirmed cancer diagnosis. Moreover, the Veteran did not have mesotheliomas of the pleura or peritoneum, and he did not have cancer of the gastrointestinal or genitourinary tract. The examiner opined that the Veteran had a diagnosis of COPD which one would expect in a heavy tobacco smoker. The examiner concluded that the Veteran did not meet the criteria for asbestosis. The examiner reviewed the entire record, including the 2002 Asbestos Evaluation Summary noted above, and found that diagnosis was based on non-specific findings on a chest x-ray and did not demonstrate the changes that one would expect with asbestos-related lung changes. In summary, the evidence against a finding of asbestos-related disease outweighs the evidence supporting such a diagnosis. Two VA examiners reviewed the entire record, including the Veteran's STRs, chest x-rays, and the findings from the private examiner in 2002, and concluded that the objective findings did not support a diagnosis of asbestos-related disease. Moreover, the December 2013 examiner also relied on a June 2013 CT of the chest which revealed an emphysema diagnosis, and no asbestos-related disease. It is a well-established medical principle that emphysema, a form of COPD, is an obstructive lung disorder, and not one usually associated with asbestos exposure. It is also well-established that the most common cause of COPD is smoking. See http://www.cdc.gov/copd/index.html Although the private examiner in 2002 interpreted the 2001 chest x-ray and PFT as indicating asbestos-related disease, the VA examiners in August 2012 and December 2013 specifically reviewed those objective test results from 2001, obtained additional objective findings in 2012 and 2013, and interpreted all of the evidence of record differently. Both examiners explained that the findings on the 2001 and 2012 chest x-rays and PFTs were reflective of COPD, and not a restrictive (asbestos-related) lung disease. Furthermore, this opinion was further supported by the June 2013 CT findings, and reiterated by the December 2013 examiner. Both VA examiners explained that the Veteran did not have a disorder typically associated with asbestos-exposure such as pulmonary fibrosis, or mesothelioma, and the objective findings on x-ray and CT scan were negative for pleural plaques, pleural thickening or ground glass opacities, findings that one would expect in lungs affected by asbestos. In essence, the 2001 x-ray and PFT findings are consistent with the 2012 and 2013 findings, and two VA examiners have interpreted all of these objective findings as showing COPD and not an asbestos-related lung disease. The VA examiners agreed that the 2002 opinion was based on nonspecific findings from a chest x-ray, and is not accurate given all of the additional evidence of record obtained since that time. Accordingly, the Board places greater weight on the findings from the VA examiners in 2012 and 2013. These examiners provided adequate rationale for their findings, and in particular, noted that the objective testing, did not contain specific markers to support the 2002 examiner's opinion. Given the lack of any pulmonary fibrosis, mesotheliomas, cancerous tumors, pleural plaques or other findings typical of asbestos-related disease, the Board concludes that the 2002 examiner's opinion is not adequately supported, and is therefore outweighed by the other evidence of record as summarized above. Moreover, the VA examiners explained that the PFT results are consistent with COPD, which is likely due to a long history of cigarette smoking. This finding is based on sound medical principles and well-established statistical data. Finally, the evidence does not show that the Veteran had a diagnosis of bronchiectasis manifested to a degree of 10 percent or more within the first post-service year. Thus, a presumption of service connection under 38 C.F.R. § § 3.307 is not established. For these reasons, the preponderance of the evidence is against the claim and service connection for a respiratory disorder to include asbestosis or other asbestos-related disease and/or COPD is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Service connection for a respiratory disorder, including bronchiectasis, an asbestos-related disease, and COPD, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs