Citation Nr: 1753211 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 14-21 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a respiratory condition claimed as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Melinda J. Willi, Agent ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from May 1960 to April 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision of the Department of Veterans Affairs Regional Office (RO) in Winsten-Salem, North Carolina. On his May 2014 VA Form 9, Substantive Appeal, the Veteran requested the opportunity to testify at a hearing before a member of the Board via videoconference. However, the Veteran withdrew his hearing request in a July 2017 letter from his representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The evidence of record fails to establish the Veteran's respiratory condition manifested in service, or is etiologically related to service, to include presumed exposure to asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 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. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA satisfied its duty to notify via a November 2011 letter that provided the Veteran with adequate notice of developing an asbestos related claim prior to the April 2012 decision. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how the disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify. The duty to assist has also been met. VA has obtained, to the extent possible, all relevant evidence identified by the Veteran and necessary for an equitable resolution of the issue on appeal. On the Substantive Appeal filed in May 2014, the Veteran's representative at that time contended the VA failed to obtain records from Carolinas Medical Center Union and Matthews Family Physicians; however, VA obtained these records in January 2015 and issued a Supplemental Statement of the Case in March 2015 that considered the records. The Veteran was afforded a VA examination in April 2014. The VA examiner examined the Veteran, reviewed his claims file, and provided opinions on the pertinent questions. In particular, the VA examiner provided an opinion as to whether the Veteran's respiratory condition was due to or caused by in-service exposure to asbestos. On the Substantive Appeal, the Veteran's representative contended the VA examiner's opinion is flawed because the VA examiner refused to review an October 2013 chest CT provided to her by the Veteran. However, the VA examiner noted in her examination report that she reviewed the October 2013 CT scan and discussed the findings from that scan. Therefore, the VA examination and opinion are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria and Analysis Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran's breathing condition, characterized here as COPD, is not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. 38 U.S.C. § 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Here, the record indicates the Veteran has a current respiratory disability in the form of chronic obstructive pulmonary disease (COPD), diagnosed by the VA examiner in April 2014. The remaining direct service connection issues are whether the Veteran's respiratory condition manifested in service, or is etiologically related to service, to include presumed exposure to asbestos. When analyzing a Veteran's claim for service connection for an asbestos related disability, the United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the Veteran's claim under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting from asbestos exposure. The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). 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. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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. Id. at Subsection (f). 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. Id. at Subsection (b). 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, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latency period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). 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. Id. at Subsection (h). In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOGC Prec. Op. No. 04-00 (Apr. 13, 2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Service connection may be granted on this basis for a disability related to asbestos exposure in service, if the evidence of record demonstrates that the veteran was actually exposed in-service and that a disease that is associated with such exposure has resulted. However, the exposure to asbestos itself is not a clinical disability. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Rather, the asbestos exposure must cause the development of a disability. The Veteran's representative has contended the Veteran was exposed to asbestos while serving onboard the U.S.S. Earle B. Hall as a boiler operator during service. The Veteran's military personnel records illustrate that he served onboard the U.S.S. Earle B. Hall from May 1962 to April 1964 and show that his military occupational specialty (MOS) was Boilerman. The M21-1 Manual provides a table to determine the probability of asbestos exposure by MOS. Although Boilerman is not specifically listed in the table, the MOS's of Boiler Technician and Boilermaker are listed and indicate exposure to asbestos with these MOS's is highly probable. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section I.3.d. As these MOS's appear to be substantially similar to the Veteran's MOS, the Board finds that he had in-service asbestos exposure. Even though the Board concedes exposure to asbestos while in service, there is no record of treatment for or a diagnosis of asbestosis or any other disease that is associated with asbestos exposure while in service, nor does the competent evidence of record show the Veteran's current COPD is related to his in-service asbestos exposure. Following an April 2014 VA examination, the VA examiner opined the Veteran's respiratory condition was less likely than not incurred in or caused by in-service exposure to asbestos. In support of the opinion, the VA examiner reasoned that COPD is not an asbestos-related condition and the most recent chest CT scan documents "no changes of asbestos exposure or asbestosis." Further, the VA examiner stated there is no evidence of "ground glass" appearance in the chest X-rays or CT scans. Lastly, the VA examiner noted the Veteran does not have the typical symptoms of mesothelioma aside from the respiratory symptoms, and that lung nodules in the CT scans are stable. In addition, the Veteran's pulmonary specialist, Dr. R.S., stated in August 2015 that the "[p]atient is obsessed that he has asbestosis and mesothelioma. He has several CT scans which ha[ve] shown clear lung fields without any evidence of pleural plaques." In August 2016, Dr. R.S. stated the Veteran has old granulomatous disease but there are no markings of asbestos exposure or disease. The CT scans referenced by Dr. R.S. include an October 2013 chest CT that shows the lungs are well inflated and clear and no changes of asbestos exposure or asbestosis. An April 2016 chest CT shows the lungs are negative for an acute disease; there are findings of an old granulomatous disease; there are no suspicious pulmonary masses or nodules; and there are no new pulmonary or pleural abnormalities. A March 2017 chest CT shows no appreciable calcified or noncalcified pleural plaque and tiny pulmonary nodules that have been stable since 2013 and are hence benign. Given that Dr. R.S. is a pulmonary specialist and chest CT scans support his diagnoses, the Board finds the statements of Dr. R.S. to be highly probative. As the above chest CT scans and statements of Dr. R.S. support the VA examiner's opinion of there being no nexus between the Veteran's service and current respiratory condition, the Board finds the VA examiner's opinion to be highly probative. The Board notes that multiple medical doctors at Carolinas Medical Center Union, including, Dr. F.M., Dr. R.P., and Dr. T.G., have diagnosed the Veteran with a history of mesothelioma or chest wall pain with a history of mesothelioma and asbestosis. Further, in June 2014, Dr. R.P. diagnosed the Veteran with chest wall pain secondary to mesothelioma with a recent CT scan that showed signs of asbestosis. However, these diagnoses are given little probative weight as the chest CT scans, as interpreted by medical specialists, do not support a diagnosis of asbestosis or mesothelioma. In addition, the diagnoses are a recitation of the Veteran's history, which has been shown to be inaccurate based on the competent medical evidence, including multiple chest CT scans. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). It is clear from the record the Veteran attributes his respiratory condition to his asbestos exposure during military service. However, the Board finds that the etiology of the Veteran's respiratory condition is a complex medical issue that requires an opinion from a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The record does not reflect that the Veteran has the type of medical expertise to competently opine on such a complex medical issue. In summary, the Board finds that a preponderance of the evidence is against a finding that the Veteran's respiratory condition is related to his military service, to include on a direct basis or due to in-service asbestos exposure. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a respiratory condition, to include as due to in-service exposure to asbestos, is denied. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs