Citation Nr: 1722474	
Decision Date: 06/16/17    Archive Date: 06/29/17

DOCKET NO.  09-49 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD) and emphysema, claimed as due to asbestos exposure, based upon substitution of the appellant as the claimant.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Carole Kammel, Counsel


INTRODUCTION

The Veteran served on active duty naval service from October 1960 to October 1962.  The Veteran died in October 2016.  The appellant is the Veteran's surviving spouse.  As explained below, she is the substituted claimant in this matter.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO).  By that rating action, the RO denied service connection for COPD.  The Veteran appealed this determination to the Board. 

The appellant is seeking service connection for a lung disability, which the Veteran initially claimed as COPD and respiratory complaints in August 2009.  The evidence includes medical records suggestive of diagnoses of a variety of pulmonary disorders including COPD and emphysema.  Consequently, the Board will reframe the claim as lung disability to include all of the aforementioned diseases.  See Clemons v. Shinseki, 23 Vet.App. 1 (2009). 

In November 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record. 

In June 2011, January 2014 and, more recently, in March 2016, the Board remanded the matter on appeal to the Agency of Original Jurisdiction ( AOJ).  The AOJ was requested to schedule the Veteran for a VA examination to determine the nature and extent of his diagnosed lung disability(ies).  In April 2016, a VA advanced practice registered nurse (APRN) examined the Veteran and provided the requested opinion.  (See April 2016 Respiratory Disability Benefits Questionnaire (DBQ) and opinion).  Thus, the requested development has been accomplished and the matter has returned to the Board for further development.

The Veteran died in October 2016.  Within a year of his death, the Veteran's surviving spouse filed a request with the RO to be substituted as the appellant.  The RO granted the appellant's request to be substituted (under 38 U.S.C.A. § 5121A) in the Veteran's appeal and informed her of the decision by a letter dated in April 2017.  Accordingly, the appellant has been substituted as the claimant for the purposes of the service connection issue on appeal.


FINDING OF FACT

The Veteran's lung disability, to include COPD and emphysema, was not manifested during active service and is not otherwise etiologically related thereto, to include his exposure to asbestos as a gunner's mate while stationed aboard the USS PARICUTIN (AE-18).  


CONCLUSION OF LAW

A pulmonary disability, to include COPD and emphysema, was not incurred or aggravated during active service.  38 U.S.C.A. §§ 1110, 1131, 5013, 5103A, 5107 (West 2014); 38 C.F.R.  §§ 3.303, 3.304 (2016).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the Veterans Claims Assistance Act of 2000 (VCAA).  Neither the appellant nor her representative has argued otherwise.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).  In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id at 486.

By a July 2009 letter to the Veteran, during his lifetime, the RO notified him of the evidence of record that was necessary to substantiate his claim of entitlement to service connection for a lung disability, claimed as secondary to asbestos exposure.  He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain.  He was also provided with the requisite notice with respect to the Dingess requirements.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, supra. 

VA also has a duty to assist a claimant in the development of a claim.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016).  Here, reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate her claim.  The pertinent evidence of record includes statements and testimony from the Veteran during his lifetime, as well as his service treatment records, and post-service VA and private treatment records.  In addition, VA examined the Veteran to determine the nature and extent of his respiratory disability in August 2011, March 2014, and, as noted in the Introduction, in April 2016, pursuant to the Board's March 2016 remand directives.  

In April 2016, a VA APRN examined the Veteran and provided the requested opinion.  (See April 2016 Respiratory DBQ and opinion).  The April 2016 VA examination report reflects that the APRN interviewed and examined the Veteran, reviewed his past medical history, documented his current (then) medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record.  The Board concludes that the April 2016 VA examination report is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate].

Accordingly, the Board's March 2016 remand instructions have been complied with regarding the claim on appeal.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].

Finally, during his lifetime, the Veteran testified before the undersigned VLJ during which he presented oral argument in support of his service connection claim.  Here, during the hearing, the VLJ clarified the issue on appeal (entitlement to service connection for a lung disability, claimed as secondary to asbestos exposure); clarified the required evidence necessary to substantiate a service connection claim; identified potential evidentiary defects which included evidence of a nexus between the Veteran's lung disability and his period of active military service; clarified the type of evidence that would support the claim; and, inquired as to the existence of potential outstanding records.  Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103 (2016).

The Board finds that under the circumstances of this case, VA has satisfied the notification and assistance provisions of the law, and that no further action need be undertaken on the appellant's behalf.  Accordingly, the Board will proceed to a decision as to the issue of entitlement to service connection for a pulmonary disability, claimed as secondary to asbestos exposure.

II. Merits Analysis

The appellant seeks service connection for a pulmonary disability, namely COPD, as secondary to the Veteran's in-service asbestos exposure. 

After a brief discussion of the laws and regulations governing service connection and asbestos-related claims, the Board will analyze the merits of the claim.

Service Connection-general criteria

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).
Service connection may also be granted on a presumptive basis for certain chronic disabilities when such are manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2016).  As the Veteran did not have a chronic disease listed in 3.309(a), the theory of presumptive service connection is not for application in the instant appeal. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Here, and as noted above, the Veteran did not have a qualifying chronic disease under 3.309(a).  Thus, the theory of continuity of symptomatology is not for application in the instant appeal.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104 (a) (West 2014).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.


Asbestos-related criteria

In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). 

According to these administrative protocols, VA must address two questions.  First, is whether a veteran's service records demonstrate asbestos exposure during active duty.  If so, the second question is whether the evidence establishes a relationship between that exposure and the claimed disease.  VA ADJUDICATION PROCEDURE MANUAL M21-1, Part IV, Subpart ii, Chapter 2 (August 7, 2015) (M-21).  The Board notes that these administrative protocols do not constitute a presumption of asbestos exposure; rather, they are a guideline for adjudication.  See VAOPGCPREC 04-2000 (April 13, 2000). 

With regard to the initial question, regarding asbestos exposure during service, the 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.  Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation.  Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s.  M21-1, IV.ii.2.C.2.a.

Some of the major occupations involving asbestos exposure include 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 products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  M21-1, IV.ii.2.C.2.d.
If it is determined that a veteran was exposed to asbestos during service, the consequent question becomes whether there is a relationship between that exposure and the claimed disease.  According to the M21-1, 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. M21-1, IV.ii.2.C.2.b.  Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis.  M21-1, IV.ii.2.C.2.c.  Disease-causing exposure to asbestos may be brief, and/or indirect.  Id.  Current smokers who have been exposed to asbestos face an increased risk of developing bronchial cancer.  Mesotheliomas are not associated with cigarette smoking.  Id.  The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease.  M21-1, IV.ii.2.C.2.f.

During his lifetime, the Veteran maintained that his COPD was the result of having  been exposed to asbestos while sleeping under an asbestos-wrapped pipe that was approximately 18 inches above his bunk rack while stationed aboard the USS PARICUTIN (AE-18).  The Veteran averred that after a few months of exposure to the asbestos-wrapped pipe in service, he started coughing and assumed it was because he was smoking.  

With respect to Shedden element number one (1), evidence of a current disability, the Veteran was diagnosed with COPD and emphysema during his lifetime.  See, e.g., April 2016 Respiratory DBQ.  Thus, Shedden element number one (1), evidence of a current disability, has been satisfied.

Regarding Shedden element number two (2), evidence of in-service disease or injury, the Board notes that the Veteran's service treatment records are devoid of any subjective complaints or clinical findings referable to any pulmonary disability.  Notably, an October 1962 service separation examination report reflects that the Veteran's lungs were evaluated as "normal."  A chest x-ray was also normal.  Notwithstanding the foregoing, the Board notes that the Veteran's military personnel records confirm, as he maintained during his lifetime, that he was stationed, in part, on the USS PARICUTIN (AE-18) from May 1961 through October 1962.  In a record of "Navy Occupation./Training and Awards History," it was noted that from August 23, 1961 to November 15, 1961, the Veteran was assigned a primary (military occupation) code of gunner's mate (GM-0800).  Also of record, is an undated document indicating that a GM would have had "minimal exposure," presumably referring to the amount of exposure to asbestos a GM would have had during naval service.  (See document labeled, "Correspondence," received into the Veteran's Veterans Benefits Management System (VBMS) electronic record on August 24, 2011)).  Thus, in view of the foregoing evidence reflecting that the Veteran had served as a GM-0800 during service, a military occupational specialty that had exposed him, albeit minimally, to asbestos, Shedden element number two (2), evidence of an in-service injury, has been met.  

Thus, the crux of the claim hinges on Shedden element number three (3), evidence of a nexus to military service.  There are three (3) VA opinions that are against this element of the claim. 

In August 2011 and March 2014, a VA APRN provided an opinion that is against the claim.  At the close of physical evaluations of the Veteran; a recitation of the Veteran's 60-pack a year history of cigarette smoking; his occupational exposure as a hairdresser; and, his reports of having had shortness of breath that began in approximately 1999, the VA APRN collectively opined that the Veteran's COPD was less likely than not (less than 50 percent probability) incurred in or caused by service.  The VA APRN provided an extensive explanation for her opinion, to include a statement that because asbestos was widely used at many industrial jobsites, COPD patients may have inhaled the fibers among others that had "contributed to their condition," but that asbestos had not been directly linked to COPD.  The VA APRN further opined that because the Veteran had reported a 20-year history of no signs and symptoms until the development of his COPD, that his 60 pack a year history [of cigarette smoking] and occupational exposure as a hair dresser were the etiology of his lung disease.  (See August 2011 and March 2014 VA respiratory examination reports).  As noted in its January 2014 remand, the Board found the VA APRN's August 2011 and March 2014 opinions to have been inadequate in evaluating the claim.  In this regard, while the VA APRN noted that she had reviewed April 2011, January and May 2012 and April 2013 x-ray reports and May 2012 computed tomography (CT) scan findings of atelectasis, old healed granulomatouus and scarring, she did not discuss if they were related to the Veteran's inservice asbestos exposure.  In addition, the Board noted that the VA APRN did not address the Veteran's reports of having had respiratory symptoms since service, despite his statement in August 2011 that he had shortness of breath that began in 1999.  In addition, and more importantly, the VA APRN did not discuss the role, if any, that the Veteran's minimal exposure to asbestos during service as a gunner's mate had on his development of COPD.  Thus, for these reasons, the Board finds, as it did in its January 2014 remand directives, the VA APRN's August 2011 and March 2014 opinions to be of diminished probative value in evaluating the claim.

In April 2016, a VA APRN examined the Veteran and diagnosed him as having COPD with emphysema.  After a review of the entire record, to include the Veteran's exposure to asbestos as a gunner's mate, the above-cited x-ray and CT findings, the Veteran's post-service employment as a hair dresser, his service treatment records, which are devoid of any respiratory problems or clinical findings, his complaints of having had shortness of breath since the early 1990s, the VA APRN opined that it was less likely than not (less than 50 percent probability) that his respiratory condition was related to his period of military service.  The VA APRN reasoned that COPD was a common lung disease that entailed emphysema,  chronic bronchitis or a combination thereof.  The VA APRN further referenced medical literature that indicated that smoking was the primary cause of COPD and that, according to the Veteran's medical record, he had approximately a 60 pack a year history that ended with a smoking cessation in December 1991.  Overall, the VA APRN opined that the Veteran's reports of exposure to asbestos during service, to include his minimal exposure to asbestos as a gunner's mate, while warranted, were inconsistent with current diagnostic findings and asbestos lung disease was not included in his medical records, including those prepared by his pulmonary specialists.  The VA APRN noted that while the real risk of persons, such as occupants of a building in which asbestos was in good repair and undisturbed, was "NOT" considered significant.  Similarly, according to the VA APRN, the Veteran had provided a history of pipes being "wrapped in asbestos" [during service,] yet maintained that they were without rips or tears. 

Finally, and in reference to a diagnosis of asbestosis, the VA APRN concluded that there was no evidence that the Veteran had possessed any of the three (3) key following findings annotated in medical literature that supported a diagnosis of asbestosis:  (i) A reliable history of exposure to asbestos with a proper latency period from the onset of exposure to the time of presentation, and/or presence of markers of exposure (e.g, pleural plaques, which are virtually pathognomonic of previous exposure, or recovery of sufficient quantities of asbestos fibers/bodies in bronchoalveolar lavage or lung tissue);  (ii) Definite evidence of interstitial fibrosis, as manifested by one or more of the following: end-inspiratory crackles on chest examination; reduced lung volumes and/or DLCO; presence of typical chest radiograph or HRCT findings of interstitial lung disease; or histologic evidence of interstitial fibrosis; and, (iii) Absence of other causes of diffuse parenchymal lung disease.  (See April 2016 Respiratory DBQ).  The April 2016 VA APRN's opinion is against the claim and is uncontroverted.   

The April 2016 VA examination report was based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the VA APRN's opinion was consistent with the Veteran's medical history, notably his minimal exposure to asbestos as a gunner's mate during service and his extensive post-service cigarette smoking history and occupational exposure as a hairdresser.

Furthermore, the Board emphasizes that the first indication of any pulmonary disorder, such as COPD, is approximately in the 1990s, decades after the Veteran separated from active duty.  Even though service connection for this disorder may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that the lung disability on appeal was related to service.  The Board finds the Veteran's reports of respiratory symptoms since service to be outweighed by the contemporaneous inservice findings of no pulmonary disorder at the service separation examination, as well as during his military service and the lack of any medical evidence of pertinent symptoms for decades after service, which would reasonably be expected if he had experienced the symptoms over this duration, as reported.

In close, the Board notes that the appellant is entirely competent to report the Veteran's symptoms during his lifetime, such as shortness of breath, but has presented no clinical evidence of a nexus between his lung disability and his service, to include asbestos exposure.  As discussed above, the Board finds that the appellant, as a lay person, is  not competent to associate any of his claimed symptoms to a particular disability.  Furthermore, she is not competent to opine on matters such as the etiology of the Veteran's pulmonary disability.  Such opinion requires specific medical training in the field of pulmonology and is beyond the competency of the appellant or any other lay person.  In the absence of evidence indicating that the appellant has the medical training in the field of pulmonology to render medical opinions, the Board must find that her contention with regard to a nexus between the Veteran's pulmonary disability and his service, to include his asbestos exposure, to be of minimal probative value and outweighed by the medical evidence which is absent a finding of such.  See also 38 C.F.R. § 3.159 (a)(1) (2015) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions].  Accordingly, the statements offered by the appellant in support of the claim, as well as the statements offered by the Veteran, are not competent evidence of a nexus.  

In light of the above discussion, the Board concludes that the preponderance of the evidence of record is against the claim for service connection for a pulmonary disability, to include COPD and emphysema, claimed as due to asbestos exposure, and there is no doubt to be otherwise resolved.  As such, the appeal is denied.


ORDER

Entitlement to service connection for a pulmonary disability, to include chronic COPD and emphysema, claimed as due to asbestos exposure, based upon substitution of the appellant as the claimant, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs