Citation Nr: 1711957 Decision Date: 04/13/17 Archive Date: 04/19/17 DOCKET NO. 09-23 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from May 1963 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. In August 2010, the Veteran testified at a Board hearing. A transcript of that hearing is of record. This matter was previously before the Board in April 2011 and June 2012 (when it was remanded for additional development), December 2013 (when it was denied), and in December 2014 when the Board remanded it pursuant to a Joint Motion for Remand (JMR). The Board finds that there has been substantial compliance with the mandates of its remand. 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). FINDING OF FACT The most probative clinical evidence of record is against a finding that the Veteran has a current lung disability causally related to, or aggravated by, active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include as due to asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service-connection for asbestos-related diseases The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2 (Mar. 4, 2017). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, including asbestosis or interstitial pulmonary fibrosis; 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). See M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2(b). However, service connection is not automatic and a probative medical nexus opinion is still required. 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). Analysis 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 this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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 claim. The Veteran contends that he has a respiratory disability causally related to, or aggravated by, asbestos exposure in service. There is insufficient evidence to find that the Veteran was exposed to asbestos while in service. With regard to this contention, the Board has reviewed the evidence of record and specifically considered the Veteran's time in service and after service and his occupational specialty in service. The Veteran has averred that he was exposed to asbestos in a variety of ways to include living in barracks in Germany, being transported aboard a ship to and from Germany, and living and/or working in a hut and van. The Board acknowledges that that asbestos was used in some areas of the military. As noted above, the M21-1 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. The Veteran's specialty (a radio operator as noted on his DD 214) is not generally associated with this type of labor. The Veteran's contention that he was exposed to asbestos while working in a radio storage van and that he was "told" by his sergeant and/or senior officers that the vans were badly insulated and to keep the doors and skylights open for ventilation, and that he was told by staff that training vans and huts in which he slept were insulated with asbestos is not competent evidence of asbestos exposure. However, the preponderance of the evidence is against a finding of asbestos exposure in service. His statements have been made more than five decades after separation from service. The Board notes that memories may fade over time. For example, the Veteran has stated that his trip from Germany to the United States was "27 days below deck", that he encountered a hurricane which shook dust and debris onto the troops below deck, that he tried to spend time above deck, and that he was "25 days aboard ship". The Veteran's military records reflect that the trip from Germany to the United States was from November 28, 1964 to December 9, 1964; his trip was only 12 days at the most; less than half the time he remembers. Thus, the evidence reflects that the Veteran's memory is not accurate as to all aspects of his service, and is insufficient to find exposure to asbestos. Moreover, and importantly, even if such exposure were conceded, service connection would still not be warranted because the most probative evidence does not reflect that the Veteran has a respiratory disability causally related to, or aggravated by, asbestos exposure (of any duration) or any other incident of service. The claims file includes an August 2011 VA examination report in which the examiner found that the Veteran had reactive airway disease and severe sleep apnea. The examiner also found that there was no CT scan evidence of exposure to asbestos and no evidence of significant pulmonary fibrosis by CT scan. The examiner found that the Veteran's dyspnea and recurrent bronchitis/pneumonia is most likely caused by his "various exposures" in service. However, the Board notes that the evidence of record does not confirm any such "exposures" in service. Further, the examiner opined that there was no current evidence of any residual of exposure to asbestos. The Veteran's November 1964 report of medical examination for separation purposes reflects that the Veteran specifically denied a chronic cough, asthma, or shortness of breath. Notably, he noted having had mumps, whooping cough, eye trouble, and that he wore glasses. In addition, the Veteran's corresponding Report of Medical Examination reflects that his lungs and chest were normal and that a November 1964 chest x-ray was normal. The Veteran's subsequent (prior to separation) Statement of Medical Condition reflects that there had been no change in his medical condition since his last medical examination in November 1964. Importantly, four years after separation, the Veteran completed a January 1969 Report of Medical History for quadrennial Reserve purposes. It reflects that the Veteran denied shortness of breath, asthma, or chronic cough. To the extent the Veteran's statements, to include those made in connection with this claim for compensation benefits, are inconsistent with the contemporaneous medical records, the Board finds the Veteran's statements lack credibility. The Board finds the contemporaneous medical evidence, including the separation examination and the quadrennial medical examination several years after service to be more probative and persuasive than the Veteran's contentions of breathing trouble since service. While the 2011 VA examiner referenced 1965 report of treatment for "recurrent cold and pneumonia" and that the Veteran was sent to a lung specialist, the quadrennial examination, which took place after any 1965 treatment, found no respiratory disability. Further, there is no further clinical evidence of treatment until 1978. The Social Security Administration (SSA) records which note an onset date of disability in approximately 1981 with additional reference to treatment from May 1978. Accordingly, the preponderance of the evidence is against a finding that the Veteran had chronic symptoms, or a chronic respiratory disability, since service. Because the August 2011 VA examination appears to rely on continuity of symptomatology (which is not shown) in providing the positive medical opinion, it lacks probative value. For these reasons, too, any clinical opinion as to etiology, to include the August 2011 opinion, which is based on a history of symptoms since service lacks probative value. In addition, the August 2011 VA opinion lacks probative value as the sole rationale for finding that recurrent bronchitis/pneumonia was a result of in-service "exposures" was the fact that the Veteran did not have any breathing problems prior to service. 1984 SSA records reflect that the Veteran's disability of asthmatic bronchitis first began more than a decade after separation from service. The Veteran reported the onset of his disability in 1981 and SSA records note he was disabled as of 1982. The record reflects that the Veteran was sick for significant periods in May, June and July of 1981 and 1982. SSA records further reflect that the Veteran had been seen in May 1978 for bronchitis and that he was seen in 1980 for shortness of breath with wheezing, and in 1981 for persistent coughing. The SSA records further reflect that the Veteran was seen on several occasions in 1983 and 1984 and was treated with allergy injections in the hope of desensitizing the Veteran. The earliest noted onset of symptoms after the quadrennial examination finding no respiratory disability is 1978, which is approximately 14 years after separation from service. The Veteran contends that his symptoms were so "bad" in service that he could not run, had "no breath", and that it got to the point where he could not "even hardly walk back up to the fourth floor [of the barracks] to the -from the showers [on the bottom floor]." The Board finds, based on the record as a whole, that this statement lacks credibility. The Veteran's STRs reflect that in December 1963, he was treated for "cough, sore throat, rhinorrhea [with] specks of blood in the sputum several times yesterday". The Veteran's chest was clear but his throat was slightly red. The impression was an upper respiratory infection. Notably, his chest was clear. A July 1964 STR reflects that the Veteran complained of a "constant cough" of approximately three days in duration. In addition, as noted above, the Veteran's November 1964 report of medical history for separation purposes; his (prior to separation) Statement of Medical Condition that there had been no change in his medical condition since his last medical examination in November 1964; and his January 1969 report of medical history for Reserve quadrennial purposes reveal no change or normal respiratory findings. The Veteran testified at the August 2010 Board hearing that he was sick after spending 26 days on a ship returning from Germany, had pneumonia when he landed (the Board notes that the Veteran separated from service the day after returning from Germany), and that he was told he had a fungus on his lungs by at least two doctors and that one of them told him that he problem got it from overseas. However, this testimony contradicts his (prior to separation) Statement of Medical Condition reflects that there had been no change in his medical condition since his last medical examination in November 1964. As noted above, the evidence most close in time to the Veteran's service (i.e. 1964 and 1969 STRs) is against a finding of chronic symptoms. The earliest post-service evidence of a respiratory disability following the quadrennial examination which showed normal respiratory findings is more than a decade after separation from service. [As noted above, the Veteran reported respiratory treatment in 1965 but subsequently his respiratory system was found to be clinically normal on quadrennial service examination.]. This lapse of time is a factor for consideration in deciding a service connection claim. Cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The claims file includes a May 2013 VA pulmonary consult which reflects that the Veteran had prior asbestos exposure; however, this appears to be based on the Veteran's self-reported history. As discussed above, there is no competent evidence of such exposure. The pulmonary consult note reflects that the "most recent CT chest does not show any significant parenchymal disease suggestive of pulmonary fibrosis, especially in light of a presumed diagnosis of an incurable/progressive disease that has been carried for 15-20 years without any evolution. No pleural thickening or plaques which would be one of the most common manifestations of any significant asbestos exposure." The 2013 examiner found that the Veteran's dyspnea was likely multifactorial with a combination of cardiac processes and deconditioning. Another VA pulmonologist provided an addendum to the examination report in May 2013. However, the parties found the addendum opinion inadequate in the JMR. As such, it will not be discussed further herein. An April 2016 VA examination report reflects that it is less likely than not that the Veteran's sleep apnea and/or bronchiectasis is due to service. The clinician found that the Veteran did not have sleep disturbances noted in service, that he gained more than 70 pounds after separation from service, and that he had a body mass index of 36 (obese) at the time of his diagnostic sleep study. The clinician found that the Veteran's age progression and weight gain since separation from service, rather than upper respiratory symptoms in service, were the cause of his sleep apnea. He also noted that upper respiratory symptoms cannot cause OSA (obstructive sleep apnea) but may aggravate an existing OSA. As the Veteran did not have existing OSA in service, his upper respiratory infection in service cannot have aggravated it. With regard to the bronchiectasis, the clinician found that the Veteran did not have lower respiratory symptoms in service and did not have documented pneumonia in service. The clinician noted that post service, the Veteran had Hodgkin's lymphoma, that patients with Hodgins's lymphoma are prone to pneumonia, and that the most common cause of localized bronchiectasis is pneumonia. The clinician found that the most likely cause of the Veteran's bronchiectasis was a post-service pneumonia noted by the Veteran. Finally, with regard to other respiratory diagnoses, the Board notes that some clinical records reflect a diagnosis of chronic obstructive pulmonary disease (COPD). There is no competent credible evidence of record which indicates that the Veteran, during the pendency of his claim, has had COPD casually related to service, to include his upper respiratory illness and/or cough. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disabilities. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of respiratory disabilities, and to include the factors specific to the Veteran do include allergies, weight gain, age, effects of chemotherapy (if any), and effects of Hodgkin's lymphoma. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, the most probative evidence reflects that the Veteran does not have a respiratory disability causally related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a respiratory disability, to include as due to asbestos exposure, is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs