Citation Nr: 1709031 Decision Date: 03/23/17 Archive Date: 04/07/17 DOCKET NO. 05-06 713A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with interstitial fibrosis, claimed as a result of asbestos exposure. 2. Entitlement to service connection for coronary artery disease (CAD), claimed as a result of asbestos exposure. ATTORNEY FOR THE BOARD L. Stepanick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1949 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The instant claims were initially denied by the Board in January 2007. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2008 Order, the Court vacated the January 2007 Board decision and remanded both claims to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In October 2008, the Board remanded the claims so that additional VA treatment records could be obtained. The claims were subsequently returned to the Board, and, in May 2009, the Board again denied them. The Veteran again appealed the Board's decision to the Court and, in a February 2010 Order, the Court vacated the May 2009 Board decision consistent with another Joint Motion and again remanded the claims to the Board. The Board remanded the claims twice more-in July 2010 and October 2014-for further evidentiary development, and they have once again been returned to the Board for adjudication. In a March 2016 statement, prior to recertification of the Veteran's appeal to the Board, a private attorney withdrew as the Veteran's representative. 38 C.F.R. § 14.631(c). The Veteran has not appointed a different representative since that time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. COPD with interstitial fibrosis was not shown in service or for many years thereafter, and the probative evidence does not establish that the condition is related to service, to include claimed asbestos exposure. 2. CAD was not shown in service or for many years thereafter, and the probative evidence does not establish that the condition is related to service, to include claimed asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD with interstitial fibrosis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.655 (2016). 2. The criteria for service connection for CAD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307. 3.309, 3.655 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). Here, compliant VCAA notice was provided in June 2004 and June 2006 letters. The Veteran's claims were last readjudicated in a November 2016 supplemental statement of the case (SSOC). With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). In that regard, the Board notes at the outset that the Veteran has failed to keep VA apprised of his current address, as evidenced by the fact that multiple mailings have been returned as undeliverable from multiple addresses during the pendency of this appeal, particularly since 2010. His VA treatment records suggest that he may now be residing in a motor home, and the Board acknowledges that this fact may hinder his ability to keep various parties apprised of his current location. Regardless, if an appellant has changed addresses, it is well established that it is his responsibility to keep VA advised of his whereabouts in order to facilitate development of a claim. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). As has been stated by the Court, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). With the foregoing in mind, the Board finds that all appropriate actions-including multiple attempts to obtain, from multiple sources, a current address for the Veteran-have been taken in an attempt to obtain evidence relevant to the Veteran's claims. His service treatment records (STRs) and relevant service personnel records (SPRs), as well as all available post-service treatment records, have been associated with the claims file, and the Board further finds that there has been substantial compliance with its prior remand instructions. Regarding the development previously requested on remand, the Board initially remanded the claims in October 2008 in order for the RO to obtain records from the Lake Havasu VA Clinic dating from 2002 to the present. May 2001 records from that facility were subsequently associated with the claims file, and, in February 2009, the clinic's parent facility responded that there were no records available for the requested period. In July 2010, the Board remanded the claims to attempt to corroborate the Veteran's assertions regarding in-service asbestos exposure, to obtain updated VA treatment records, and to obtain VA examinations. Updated VA treatment records were subsequently obtained, a negative response was received from one federal records repository with respect to the asbestos inquiry, and the Veteran was notified of that negative response. An attempt was also made to schedule the Veteran for the requested VA examinations. Both the examination notice and the notice regarding the negative response from the records repository were returned as undeliverable. During that time period, the AOJ also attempted to verify the Veteran's address by calling him and by contacting a congressional office he had previously contacted for assistance with his claims. In October 2014, the Board again remanded the claims, as the AOJ had not issued an SSOC prior to returning them to the Board. On remand, the Board again asked for updated treatment records. It also asked the AOJ to make additional attempts to ascertain the Veteran's whereabouts and to corroborate his reports regarding in-service asbestos exposure. Finally, the Board instructed the AOJ to schedule the Veteran for VA examinations if he could be located. Following the remand, updated VA treatment records were again associated with the claims file. Those records included a new address for the Veteran. As a result, the AOJ again attempted to schedule the Veteran for examinations. Specifically, in May 2016, it sent him a notice letter that informed him he would be contacted by a private facility to arrange the examination dates, and, although that letter was not returned as undeliverable, the record reflects that the examinations were subsequently scheduled and that the Veteran failed to appear. During that remand period, the AOJ also contacted an additional records repository to attempt to verify the Veteran's in-service exposure to asbestos. A negative response was received from that repository in May 2016. Thereafter, the AOJ issued an SSOC, notice of which was sent to the address that had been located in the Veteran's VA treatment records. That notice was subsequently returned as undeliverable. The Board is cognizant of the fact that the Veteran's failure to appear for his VA examinations will result in his claims being evaluated based on the evidence currently of record, see 38 C.F.R. § 3.655(a), (b) (2016), and that the likelihood that he never received notice of the scheduled examinations is high. However, it finds that remanding his claims to attempt to schedule additional examinations or to provide him with any other type of notice regarding the status of his claim would not serve any useful purpose, as the evidence of record suggests that his current location remains unknown. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Based on the foregoing, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See 38 C.F.R. § 20.704(d), (e); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will proceed to a decision on the merits. II. Service Connection The Veteran is seeking service connection for CAD and COPD with interstitial fibrosis, both of which he asserts were caused by in-service asbestos exposure. Service connection may be established for a 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 (2016). 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); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2014) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 cardiovascular-renal disease 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 disease 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 (2016). 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.2, provides information concerning claims for service connection for disabilities resulting from asbestos exposure. The 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, and notes that 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. M21-1, IV.ii.2.C.2.a. The manual notes that the inhalation of asbestos fibers can produce fibrosis, most commonly interstitial pulmonary fibrosis, or asbestosis, tumors, pleural effusions, pleural plaques, mesotheliomas of pleura and peritoneum, and certain cancers. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at the late stages; and pulmonary function impairment and cor pulmonale which can be demonstrated by instrumental methods. M21-1, IV.ii.2.C.2.b, g. The manual also lists some of the major occupations involving exposure to asbestos, including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. M21-1, IV.ii.2.C.2.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. M21-1, IV.ii.2.C.2.h. The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The post-service medical evidence of record confirms that the Veteran has been diagnosed with CAD and COPD with interstitial fibrosis. Additionally, the record suggests that the Veteran's lung disease may be asbestos-related. In that regard, his private treatment records document findings of interstitial fibrosis, pleural plaquing, pleural effusions, and "pleural parenchymal fibrotic changes." In June 2001, a "B Reader"-an approval that, per the Centers for Disease Control and Prevention, is granted to physicians who demonstrate proficiency in the classification of chest radiographs for pneumoconiosis-reviewed CT and high resolution CT (HRCT) scans of the Veteran's thorax and determined that the findings were consistent with asbestos-related interstitial fibrosis and pleural disease. With current disabilities established, the remaining question is whether those disabilities arose in service or are otherwise related to service, to include in-service asbestos exposure. The Veteran's STRs document no treatment for or diagnosis of lung or heart conditions. His post-service treatment records suggest those conditions arose no earlier than the 1990s, and, indeed, the Veteran has not asserted that he experienced symptoms related to either of his current disabilities during service or for many years thereafter. Rather, he asserts that he was exposed to asbestos in 1950 while scraping and painting the boiler room of the ship that transported him to Korea, that he was also exposed to asbestos while repairing vehicle brakes and mufflers in the motor pools, and that these in-service exposures led to development of lung and heart conditions many years later. After review of the record, the Board finds that the most probative evidence is against the Veteran's claims. The Board notes at the outset that the Veteran's in-service exposure to asbestos has not been confirmed. His SPRs indicate that he served as a cannoneer during active duty while in Korea-a position not typically associated with asbestos exposure. See M21-1, IV.ii.1.I.3.c. In June 2004, the RO sent the Veteran a letter requesting the dates and locations of his in-service exposure to asbestos, the method of exposure, the names of other service persons with him at the time of exposure, his organization and rank at the time of each exposure, his complete employment history pre-and post-service, and medical evidence that showed the diagnosis of the disease caused by asbestos. Attempts, detailed in Part I of this decision, above, were then made to verify his assertion that he was exposed to asbestos while being transported to Korea aboard a certain ship and while repairing military vehicle brakes and mufflers, but no relevant information was received. Notably, it does not appear that the Veteran has described a history of in-service asbestos exposure to clinicians. In that regard, during a private evaluation in August 2000, he reported that he had retired from the heating and air conditioning repair business in 1995, after 23 years. The clinician noted that the Veteran reported "lots of exposure to asbestos." The context of the clinician's comment suggests that the statement was related to the Veteran's post-service, rather than in-service, duties. During a VA pulmonary consultation in December 2008, the Veteran reported that he had smoked two to three packs of cigarettes daily for 45 years but had stopped 16 years prior. He also reported working in the heating and air conditioning repair business for over 30 years, stated that he was exposed to asbestos on a "regular basis," and stated that he had been told he had findings on a previous CT scan that were consistent with asbestos exposure. Again, the Veteran did not mention his in-service duties. As he reported other remote exposures in the context of evaluations conducted to assess current breathing symptoms, one would expect the Veteran to describe any in-service exposure, as well. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In any event, even assuming for the sake of argument that the Veteran was exposed to asbestos during service as he has asserted, the Board finds that service connection for his current disabilities still would not be warranted, as there is no competent evidence linking those disabilities to such in-service exposure. As already discussed, the Veteran did not report for the VA examinations that were scheduled pursuant to the Board's October 2014 remand. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2016). Thus, the Board must decide these claims based on the evidence currently before it. Initially, the Board acknowledges that the Veteran has submitted several articles that discuss use of asbestos on naval ships and list various personnel, by occupational specialty, who were likely exposed. However, those articles essentially reiterate information that is already incorporated into VBA Manual M21-1 and do not serve to establish either that this particular Veteran was exposed to asbestos or that, if he was, such exposure caused his current disabilities. Indeed, the only opinion of record that suggests a nexus between the Veteran's current lung and heart disabilities and service is his own. While the Board does not doubt that the Veteran sincerely believes that his COPD with interstitial fibrosis and CAD are related to service, as a lay person, he has not shown that he has specialized training sufficient to opine on the etiology of lung and heart conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Such conditions are complex and can have many causes, and forming competent opinions regarding those causes requires medical testing and expertise. Thus, the Veteran's opinion as to the etiologies of his lung and heart conditions lacks probative value. The Board acknowledges that it, like the Veteran, does not possess the expertise necessary to offer a competent medical opinion with respect to the cause of the Veteran's current heart and lung disabilities. However, the Board notes the list of common materials that may contain asbestos cited in VBA Manual M21-1 and also notes the likelihood that the Veteran would have come into contact with at least some of those materials during a post-service career in the heating and air conditioning repair business. See M21-1, IV.ii.2.C.2.a. The Board finds that the documentation of at least one other possible-and more probable, based on the evidence of record-source of asbestos exposure renders a competent medical opinion establishing a link to service particularly crucial in this case. In short, the evidence of record does not reflect that the Veteran's CAD or COPD with interstitial fibrosis manifested in service or for many years thereafter, and there is no probative evidence linking either of those conditions to service, to include in-service asbestos exposure. Without competent and credible evidence of an association between the Veteran's CAD and COPD with interstitial fibrosis and service, service connection for those disabilities is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable here. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for COPD with interstitial fibrosis is denied. Service connection for CAD is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs