Citation Nr: 1623745 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 11-08 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to May 1980. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2015, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The Board remanded this matter for further evidentiary development in April 2015. The case has since returned to the Board. FINDING OF FACT Review of the evidence of record reveals that it is at least as likely as not that the Veteran's COPD etiologically related to his exposure to asbestos and other toxic particulates in service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Since the Board is granting the Veteran's appeals for service connection for COPD there is no need to discuss whether the Veteran has received sufficient notice or assistance with regard to this claim, given that any error would be harmless Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, 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 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR 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 MR, part IV, Subpart ii, Chapter 2, Section C, 2 (f). The M21-1 MR also provides a list of military occupational specialties and their likelihood of asbestos exposure while Fireman is listed as highly probable. See M21-1 MR, part IV, Subpart ii, Chapter 1, Section l, 3 (C). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all of the evidence in the Veteran's claims 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims decided herein. Merits The Veteran has been currently diagnosed with COPD most recently in a July 2015 VA examination. Thus, the Board finds that the Veteran has a current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) (element one is met). Turning to the second element required for service connection an in-service incurrence. The Veteran's personnel records indicate he served as a fireman recruit, fireman, apprentice, engineman, and electrical/mechanical equipment repairman in the Navy. Due to his MOS as a fireman exposure to asbestos is highly probable. See M21-1 MR, part IV, Subpart ii, Chapter 1, Section l, 3 (C). The Board finds that given the Veteran's testimony and the medical evidence provided by the Veteran's treating physician in his March 2015 VA treatment note that the Veteran was exposed to asbestos while in service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)) (element two is met). Turning to the last component of service connection, a nexus between the Veteran's in service exposure to toxic containments such as asbestos and his current COPD, the Board first turns to the VA examiner addendum opinion provided in response to a April 2015 remand. This remand attempted to ensure that the appropriate evidence was reviewed by a VA examiner and a proper nexus opinion was provided. In particular the remand articulated two pieces of evidence to be reviewed and implied a third. First, the examiner was to consider the Veteran's testimony regard exposure to multiple contaminants not limited to asbestos but to include welding smoke and silica. Second, the examiner was asked to specifically address an August 2010 medical opinion from the Veteran's treating physician. Third, the Board requested updated treatment records from the Bay Pines VA Healthcare System from February 2011 to include a CT scan done of the Veteran's lungs. The Board discussed in the remand that the Veteran testified that he was informed that this CT scan showed pleural plaquing, an indicator of asbestos related CPOD. While the examiner was not explicitly asked to comment on this evidence, he was informed that he should review all the evidence. In reviewing the July 2015 report that the examiner provided, the Board notes that the examiner too narrowly focused on the Veteran's claim of being exposed to asbestos. He writes "It was noted he was exposed to asbestos during the service. CT chest with no finding of asbestosis or pleural plaquing." However, the examiner does not comment on the Veteran's assertion that the February 2011 CT scan showed pleural plaquing. Turning to the Veteran's testimony and statement on his exposure to containments, the Board explicitly requested that the examiner address these statements, however, any analysis is absent from his report. Instead, the examiner cites the Veteran's years of smoking several times without addressing either the Veteran's statement of exposure of containments in service or the Veteran's earlier 2010 medical opinion from the examiner treating physician. For these reasons, the Board finds that the medical opinion is, in part, inadequate and thus, not given much probative weight. Turning to the Veteran's treating physician opinion, the Board notes that the Veteran provided a medical opinion linking his COPD to his in-service exposure to containments, however, in the April 2015 remand the Board found this opinion too conclusory without a reasoned rationale. However, in the Veteran's February 2015 hearing, the undersigned VLJ invited the Veteran to submit an addendum to this opinion with supporting rationale to bolster the physician position. The VA treatment records collected from the Bay Pines VA Healthcare center included this March 31 2015 addendum opinion from his treating physician. The treating physician writes: For years, I have treated [the Veteran] for the condition of COPD with h/o significant asbestos and other particulates exposure in the service. I have been at the VA for 18 years. I graduated medical school in 1978 and am Board certified in internal medicine and geriatrics. Chest X-rays and CT Scans over [sic] years including the most recent CT scan of 2/26/2015 have demonstrated advanced COPD/Bullous Emphysema and interstititial lung disease. His condition has worsed more recently [...] He has conversed with me numerous times over the years regarding his service exposures to particulates including asbestos. He was assigned to the Vancouver LPD2 Amphibious ship 1976-1980, was [sic] fireman and exposed to toxic particulates while working [sic] engine room, auxillary machinery rooms, and bakery duty [sic] 6 mos as well [sic] exposed to flour and related dust and grease. He experienced frequent bronchitis twice a year. During his time on the ship, asbestos abatement was ongoing for 18 mos. In my opinion his current advanced state of lung impairment began in the service when exposed to asbestos and other particulates and has progressed to this date. Without this exposure to toxic particulates in the service, his emphysema may have well developed from other post service causes i.e. smoking, but not doubt in my mind that the service exposures predisposed him to an earlier more disabling chronic lung condition. The Board notes that the treating physician opinion provides persuasive premises for its conclusion. The examiner takes into account both the containments outside of asbestos which the Veteran was likely exposed to and notes that the Veteran smoking habit may have inevitability led to his COPD, but he ultimately finds that the severity and early onset of the COPD eliminates smoking as being solely responsible for his COPD. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (Most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). In weighing the two medical opinions, the Board notes that the March 2015 addendum opinion was written by the Veteran's treating physician who, as he stated, has been treating the Veteran for 10 years while in contrast the July 2015 opinion was conducted by a VA examiner who had never examined the Veteran but only reviewed the Veteran's medical evidence. Moreover, as noted above, the VA examiner who conducted the examination did not address the positive evidence provided by the Veteran in the form of his testimony and positive medical opinion. Considering the foregoing, the Board finds that the question of whether the Veteran's COPD was at least as likely as not related to his active service is placed into equipoise. Thus, the Board finds that the provisions of 38 U.S.C.A. § 5107(b) control and the Veteran should be provided the benefit of the doubt. As such, the Veteran has met all three elements of service connection for his COPD. ORDER Entitlement to service connection for COPD is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs