Citation Nr: 1753893 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-19 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a respiratory disability manifested by breathing problems, to include asthma and bronchitis, to include as due to asbestos and herbicide exposure. ORDER Service connection for a respiratory disability is denied. FINDING OF FACT The Veteran was not exposed to herbicides during active service, nor does he have an asbestos-related disease; symptoms of asthma and COPD were not continuous or unremitting in service or since service separation; and there is no medical nexus between the current asthma or COPD and active service, including as due to herbicide or asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met, including presumptively based on herbicide exposure or due to asbestos exposure. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from March 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case has been before the Board on two prior occasions. More recently, in March 2017, the Board remanded the case for further development. The development requested having been completed, the case is now appropriate for appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. The condition at issue is not one of the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In addition, service connection can be presumed if a veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.309(e). Presumptive service connection for the listed disabilities as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this case, the Veteran has not been diagnosed with any of the diseases presumptively related to herbicide exposure in 38 C.F.R. § 3.309(e). However, if there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. Regarding the Veteran's assertion that he has a respiratory disability that is related to in-service asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases (DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular)) that 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. The guidelines provide that the latency period for asbestos- related diseases varies from 10 to 45 years or more between first exposure and development of disease. It is noted that an asbestos- related disease can develop from brief exposure to asbestos or as a bystander. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and, notably for this case, mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. 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 MR, 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. VAOPGCPREC 4-00. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current respiratory disability, diagnosed as asthma and COPD, is etiologically related to active service. Specifically, he contends that he was exposed to asbestos while stationed on the USS Princeton (see correspondence dated April 19, 2016), and that this exposure caused a respiratory disability manifested by shortness of breath and difficulty breathing. Alternatively, he contends that he was exposed to Agent Orange as he was in or near Vietnam several times during his active service. In a letter that accompanied his July 2011 VA Form 9, he stated that he was exposed to Agent Orange from being around the troops and equipment that had set foot in Vietnam and returned to the ship. However, the Board finds that the weight of the evidence is against a grant of service connection for a respiratory disability. The Veteran's service treatment records are negative for any signs, symptoms, reports, treatment, or diagnosis of a respiratory disability. The December 1967 separation examination report indicates that clinical evaluation of the lungs and chest was normal, and that a chest x-ray was normal. Following separation from service, in June 2003, private treatment records show that the Veteran denied a history of asthma or wheezing, but indicated that he had a history of shortness of breath. Lungs were clear to auscultation and percussion, and it does not appear that any treatment or diagnoses for a respiratory disability were rendered at that time. In November 2003, a private emergency consultation record again indicates that the Veteran denied a history of asthma or lung disease. He also denied that he had ever been diagnosed with asthma in April 2004. In June 2005, a CT scan of the chest was performed based on the Veteran's complaints of difficulty breathing. The lungs were clear with no focal opacification, effusion, pneumothorax edema, or nodules. The central tracheobronchial tree was clear. There were small, non-calcified pleural plaques along the anterolateral margins of the upper lungs bilaterally, which could potentially be related to prior asbestos exposure. However, the radiologist noted that these plaques were not calcified and, therefore, were of indeterminate etiology. Further, they were probably benign and inflammatory in nature. In July 2005, lungs were noted to be clear to auscultation and percussion. In May 2006, a pulmonary function test revealed no obstructive lung defect indicated by the FEV1/FVC ratio. There was a mild restrictive lung defect, however. Diffusion capacity was within normal limits. It was noted that the Veteran was undergoing aerosol treatment with albuterol. A December 2006 VA treatment note indicates that the Veteran reported dyspnea on exertion and occasional shortness of breath at rest. He was taking Advair which helped with his symptoms. Examination of the lungs revealed mild end-expiratory wheezes. The clinician assessed shortness of breath that was related to paroxysmal nocturnal dyspnea, chronic obstructive pulmonary disease (COPD), or asthma, which was noted to be less likely. A chest x-ray was performed and the clinician indicated he wanted to checked pulmonary function tests. In February 2007, it was noted that the most recent pulmonary function tests did not indicate COPD or asthma, and that the reason for previously prescribed inhalers was unclear. However, a May 2007 VA treatment note indicated a possible history of COPD, and the COPD diagnosis was continued in VA treatment notes from that point on. In November 2007, at a primary care initial evaluation, the Veteran reported breathing problems. The clinician reviewed the Veteran's medical records from his prior VA facility and noted no environmental exposures during military service. Lungs were clear to auscultation, with no wheezing and good air movement and effort. The clinician diagnosed asthma that was stable and refilled his inhaler medications. In December 2007, the Veteran again reported shortness of breath and the clinician indicated possible diagnoses of congestive heart failure exacerbation, COPD exacerbation, and pneumonia. The lungs were clear with no current symptoms of COPD. The clinician also noted that he was less likely to have pneumonia because he was afebrile, his chest x-ray was without infiltrate, and he had a normal white count. The following day, it was noted that the shortness of breath had resolved following Lasix and nebulizers. The Veteran was afforded a VA Respiratory Conditions examination in April 2016, at which time he reported that he began experiencing shortness of breath with exertion five years prior. The VA examiner diagnosed asthma and dyspnea with exertion, and opined that the Veteran did not have evidence of an asbestos related disease, noting that the February 2015 chest x-ray was negative for pleural plaques or interstitial lung disease. Moreover, the pulmonary function studies from April 2016 were normal. There was no evidence of restrictive lung disease, and diffusion studies were also normal. The examiner noted that asbestosis is characterized by interstitial pulmonary fibrosis. The fibrosis is caused by inflammation that occurs in the lung due to the inhalation of the asbestos fibers. This Veteran's findings did not meet the criteria for asbestosis. The Veteran was afforded another VA examination in April 2017. The Veteran reported being diagnosed with asthma in 2000, at which time he was prescribed medication for shortness of breath. A chest x-ray was normal. The VA examiner diagnosed asthma and opined that the claimed respiratory disability was less likely incurred in or caused by active service, as the enlistment and separation examination reports did not list any problems with breathing. After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that there was no event, injury, or disease manifesting a respiratory disability during active service, and that symptoms of a respiratory disability were not continuous or recurrent in service. As noted above, service treatment records were silent as to any signs, symptoms, reports, treatment, or diagnosis of a respiratory disability. The Board next finds that the preponderance of the evidence demonstrates that symptoms of the claimed disorder have not been continuous or recurrent since separation from active service in January 1968. The first documented report of shortness of breath was in 2003, as noted above. Further, the Veteran himself has provided multiple histories of the inception of his claimed disability that weigh against a finding of continuous symptoms since active service. For instance, at the 2016 VA examination, he stated he began experiencing shortness of breath on exertion five years prior. At the 2017 VA examination, he said he did not begin having symptoms until 2000. Further, on his VA Form 21-526, submitted in February 2008, he indicated that his respiratory condition began in 1980, still 12 years after service separation. The absence of post-service complaints, findings, diagnosis, or treatment for a respiratory disability for at least 12 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disorder after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). In addition, as noted above, the Veteran's multiple statements regarding the inception of his respiratory symptoms provide highly probative evidence against a finding that he has had continuous or recurrent respiratory disability symptoms since service separation. To the extent that the Veteran's recent assertions made in the context of the current disability claim can be interpreted as a claim of continuous or recurrent respiratory disability symptoms since service, the Board finds that, while the Veteran is competent to report the onset of symptoms of the claimed disorder, these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's assertions of continuous or recurrent symptoms of a respiratory disability after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, which were negative for any signs, symptoms, complaints, treatment, or diagnoses of respiratory problems; the Veteran's own history provided on his 2008 VA Form 21-526, and at the 2016 and 2017 VA examinations, as discussed above; and the lack of any documentation of reports or treatment for respiratory problems until 2003, 35 years after service separation. As such, the Board does not find that the evidence sufficiently supports continuous or recurrent symptomatology of the claimed disorder since service, so as to warrant a grant of service connection. The Board acknowledges the Veteran's belief that his current respiratory disability is related to active service. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis, etiology, or causation of a specific disability. The question of diagnosis and causation, in this case, involves complex medical issues that the Veteran is not competent to address. Jandreau. Moreover, the Board finds that no medical opinions are of record which support a relationship between the Veteran's current respiratory disability and active service, nor is there any other indication in the medical evidence of record that there is a relationship between the current respiratory disability and active service. As noted above, the Veteran was afforded VA examinations in 2016 and 2017. The 2016 VA examiner opined that the Veteran did not have asbestos-related disease, noting no signs or indications of asbestosis, citing to specific medical history and current findings. The 2017 VA examiner diagnosed asthma but opined that it was not etiologically related to active service. The Board notes, as above, the June 2005 CT scan finding of pleural plaques of indeterminate etiology, possibly related to prior asbestos exposure. However, the plaques were noted to be benign and no treatment was recommended for these findings, nor was there an indication that these plaques were the cause of his current respiratory symptoms of shortness of breath or difficulty breathing. Moreover, as noted above, the 2016 VA examiner found no evidence of an asbestos-related disease. The Board finds the VA examiner's opinion that there is no current asbestos-related disease to be more probative than the CT scan report, as the VA examiner's findings were based on a complete physical examination and interview of the Veteran as well as a review of prior chest x-rays, pulmonary function tests, and other studies, whereas the radiologist's findings were based on a single CT scan. As also noted above, the Board notes that neither asthma nor COPD are listed among the diseases presumptively related to herbicide exposure in service, so a medical nexus for those disabilities may not be presumed as a matter of law under the provisions of 38 C.F.R. § 3.309(e). Moreover, the weight of the evidence is against a finding that he was exposed to Agent Orange or other herbicides during active service, in that it does not demonstrate that he set foot in Vietnam or was otherwise exposed to herbicides. In August 2008, the National Personnel Records Center issued a response to VA's request that it was unable to determine whether or not the Veteran served in Vietnam, noting that he did serve aboard the USS Princeton which was in the official waters of Vietnam during his time aboard the ship. Further, he did not receive any medals which would indicate in-country service. The Board notes that even if herbicide exposure was conceded, no examining or treating physician has found that the current asthma or COPD are related to herbicide exposure in service, nor does the evidence of record suggest such a relationship. In sum, the weight of the competent evidence demonstrates that there is no relationship between the Veteran's respiratory disability and active service, including to asbestos or herbicide exposure. There are no contrary opinions of record. Based on the evidence of record, the weight of the evidence demonstrates no relationship between the Veteran's current respiratory disability and his military service, including no credible evidence of continuous or recurrent symptoms of the claimed disorder during active service, continuous or recurrent symptomatology of the claimed disorder following service separation, or competent medical evidence establishing a link between the respiratory disability and active service. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a respiratory disability, and outweighs the Veteran's more recent contentions regarding in-service continuous or recurrent symptoms and continuous or recurrent post-service symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by way of a March 2008 letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, VA examination reports, and the Veteran's statements. As discussed above, the Veteran was afforded VA examinations in 2016 and 2017. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate. The opinions were predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as physical examination and interview of the Veteran. The VA nexus opinions considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provide complete rationale for the opinions stated, relying on and citing to the records reviewed. Any deficiencies in the 2016 VA examination report were adequately addressed by the 2017 VA examination report, and that report satisfies the Board's March 2017 remand directives. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this claim has been met. 38 C.F.R. § 3.159(c)(4). [CONTINUED ON NEXT PAGE] Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD T. Sherrard, Counsel Copy mailed to: Georgia Department of Veterans Services Department of Veterans Affairs