Citation Nr: 1744047 Decision Date: 10/02/17 Archive Date: 10/13/17 DOCKET NO. 09-10 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a lung disorder, diagnosed as chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos and/or ionizing radiation. REPRESENTATION Appellant represented by: Dale K. Graham, Agent ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from December 1958 to December 1962. He died in May 2011; the appellant is his surviving spouse. In March 2012, the RO notified the appellant that her status as a substituted claimant had been recognized and approved. Her July 2011 claim for accrued benefits served as a request to substitute for the pending appeal and pending claims at the time of the Veteran's death. 38 U.S.C.A. § 3.1010(c)(2). In addition, a person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant...." 38 U.S.C. § 5121A (West 2014). The Board finds the appellant has been properly substituted. This matter comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to service connection for a lung disorder, to include residuals of pneumonia, diagnosed as COPD. In February 2011 and May 2017, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development and adjudication. The Board observes that during his lifetime, the Veteran had claimed entitlement to service connection for lung cancer, claimed as secondary to COPD; entitlement to service connection for bladder cancer, and entitlement to an increased rating for bilateral hearing loss. Those claims were pending at the time of his death. In an October 2012 rating decision, the Pension Management Center in St. Paul, Minnesota granted service connection for bladder cancer and assigned a 100 percent disability rating effective February 28, 2011; increased the assigned rating for hearing loss to 40 percent; and deferred a decision on the claim for lung cancer, pending a decision of the COPD issue on appeal. The rating decision also granted service connection for the cause of the Veteran's death (bladder cancer), basic eligibility to dependents' educational assistance (DEA), and eligibility for DEA from February 24, 2011 for accrued purposes. Although the Veteran's lung cancer was shown to be a metastasis of his bladder cancer, the claim remains deferred and unadjudicated by the RO, pending the outcome of the appeal for service connection for PTSD. FINDINGS OF FACT 1. The Veteran's documented military occupations as seaman apprentice and seaman have a minimal risk of exposure to asbestos, and competent, probative evidence of record attributed his COPD, an obstructive disease that was first diagnosed in 2001, to his 40-year history of smoking two packs of cigarettes per day from approximately 1951 to 1991, rather than to any interstitial fibrosis characteristic of asbestos exposure. 2. The Veteran was exposed to ionizing radiation as a participant of Operation DOMINIC I while serving aboard the USS Rowan (DD-782) in 1962. 3. COPD is neither a disease specific to radiation-exposed veterans nor a radiogenic disease; neither the appellant nor the Veteran during his lifetime had cited or submitted competent scientific or medical evidence that COPD was a radiogenic disease; and competent, probative medical opinion evidence of record attributed the Veteran's COPD, first diagnosed in 2001, to his 40-year history of smoking two packs of cigarettes per day from approximately 1951 to 1991. CONCLUSION OF LAW The criteria for establishing service connection for COPD, to include as due to exposure to asbestos and/or ionizing radiation, are not met. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process With respect to the claim for service connection for a lung disorder decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In the instant case, VA provided adequate notice regarding the claim for service connection in a letter sent to the Veteran June 2008. Regarding VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the issue decided herein, to include substantial compliance with the prior Remand directives, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also D'Aries v. Peake, 22 Vet. App. 97, 105. Service treatment and personnel records, a statement from a private physician, VA examination reports pertinent to other claims, information about the USS Rowan (DD-782), an excerpt from an unknown publication related to Operation Dominic I at the Pacific Proving Grounds in 1962, and lay statements are associated with the claims file. As discussed further in the decision below, VA provided a relevant VA examination prior to the Veteran's death and obtained a VA medical opinion after his death. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the substituted appellant is required to fulfill VA's duty to assist. II. Service Connection Claim In his original, December 2007 claim for VA compensation benefits for other disabilities, the Veteran indicated he had been exposed to asbestos as a result of shipboard plumbing being covered in asbestos. He reported, however, that he had no disability associated with asbestos exposure at that time. In separate correspondence accompanying his claim, he stated he was a "deck hand, worked in the engine room, and was a gunner's mate." He described military noise exposure while serving on the destroyer USS Rowan, including "engines, hydraulics, power tools,...large guns..., and forced air blowers." In May 2008, VA received the Veteran's claim for service connection for a lung disorder, which he believed was caused by in-service episodes of pneumonia for which he was diagnosed and treated. He described his current symptom as being "short-winded." In September 2008 correspondence, the Veteran asked VA to reconsider the August 2008 decision, stating that he was first diagnosed with pneumonia in January 1959 while at the San Diego Naval Hospital, and he was diagnosed with pneumonia a second time in late 1962 while aboard the USS Rowan. In this decision, the Board first considers the Veteran's contentions regarding service connection for COPD on a direct basis, including as a result of the reported episodes of in-service pneumonia; then considers service connection for COPD due to claimed exposure to asbestos; and finally considers whether his COPD was associated with exposure to ionizing radiation during his Naval service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). "To establish a right to compensation for a present disability, a veteran 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'-- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records are silent for any diagnosis of pneumonia or chronic lung disorder. On enlistment examination in November 1958, his lungs and chest were normal on clinical evaluation and a chest x-ray was reported as negative. In January 1959, he received a routine chest x-ray at the U.S. Naval Training Center (NTC) in San Diego before reporting aboard for recruit training. The chest x-ray examination was reported as negative. Later in January 1959, he presented to sick call with complaints of cough, sore throat, and chest pains. Objectively, he had a fever of 103 degrees and his throat was injected [red] and exudative. His chest was clear with few rhonchi. It appears from the record that a rapid detection test had no growth, and he was prescribed penicillin. In January 1960, he complained of back and chest pain. He had no fever. The diagnosis was muscle spasm. A January 1960 chest x-ray study was reported as negative. Chest x-ray examination in August 1961 revealed an 8mm calcific extra density in the second right anterior interspace thought to represent the pulmonary focus of a healed primary complex. The remainder of the lung fields appeared normal. The impression was essentially normal study. Finally, on separation examination in December 1962, the Veteran's lungs and chest were reported as normal on clinical evaluation and a chest x-ray was reported as negative. The Veteran's service personnel records identify his Naval rating or military occupational specialty (MOS) as "SA" (Seaman Apprentice) beginning in March 1959 and as "SN" (Seaman) beginning in May 1960 and throughout the remainder of his service. They also reflect that he commenced sea duty in April 1960 aboard the USS Rowan (DD-782) and that the USS Rowan was present in the vicinity of Operation Dominic in May 1962. In correspondence dated in June 2008, G. McKinnis, M.D., the Veteran's private pulmonologist, indicated that the Veteran had been diagnosed with COPD and was on nocturnal oxygen therapy. Dr. McKinnis acknowledged the Veteran's report that he had been treated for pneumonia on at least two occasions many years ago while serving in the U.S. Navy. Dr. McKinnis opined that it was "possible that these infections contributed to his ongoing breathing difficulties and to his current condition of COPD." In connection with his claim for service connection, the Veteran had been afforded a VA respiratory examination in February 2011. He reported he had been diagnosed with COPD about ten years earlier and also had a history of obstructive sleep apnea. He described being "hospitalized twice for pneumonia" while he was in the military and disclosed a history of "smoking [two] packs a day for 40 years" and quitting in 1991. He described other health history including bladder cancer diagnosed in May 2010 with metastasis to the lungs, liver, bones, and lymph nodes on PET scan. Following a review of the claims file and examination, the diagnosis was COPD and bladder cancer with metastasis. The examiner opined that it was less likely than not that the Veteran's COPD was related to military service. In support of the conclusion, the examiner explained that medical literature in peer-reviewed published journals indicated that cigarette smoking is overwhelmingly the most important risk factor for COPD. Other risk factors included increased airway responsiveness to allergens; environmental exposures such as dust, gasses, fumes, or organic antigens; antioxidant deficiency; tuberculosis; and bronchopulmonary dysplasia. The examiner acknowledged the Veteran's reports of being hospitalized twice for pneumonia during military service, but observed that there was no evidence that the Veteran was treated for a chronic lung disorder within ten years of his military discharge. Instead, the examiner emphasized the Veteran's reported history of smoking two packs of cigarettes per day for 40 years and reiterated that cigarette smoking was an independent risk factor for COPD. Considering the service connection claim for COPD on a direct basis, the Board finds that the preponderance of the evidence weighs against the claim. Contrary to the Veteran's assertions that he had been hospitalized for pneumonia in January 1959 and late 1962, his service treatment records document a routine chest x-ray in January 1959, which was negative, and all other x-ray reports were negative or "essentially normal" in the case of the August 1961 x-ray report. Moreover, the Veteran's January 1959 respiratory complaints for which he was apparently treated with penicillin are shown by the medical evidence to be acute and transitory rather than indicative of a chronic respiratory or lung disorder. Notably, subsequent clinical and radiological chest and lung examinations during service reflected normal or negative findings. Furthermore, on VA examination in February 2011, the Veteran reported being diagnosed with COPD around 2001, approximately ten years after he quit smoking and 39 years after he separated from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. Ap. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for a lengthy time period between service and initial symptoms of disability). Turning to the medical opinion evidence, the Board affords little probative value to the June 2008 opinion by Dr. McKinnis because it was based primarily on the Veteran's inaccurate report of being treated for pneumonia "on at least two occasions" during military service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the probative value of a medical opinion is significantly lessened to the extent it is based on an inaccurate factual premise). Similarly, the opinion fails to address the relevant history of the Veteran smoking two packs of cigarettes per day for 40 years, or the proximity in time between his COPD diagnosis in 2001 and his history of smoking from approximately 1951 to 1991 versus his isolated complaints of cough, sore throat, and chest pains decades earlier in January 1959. Finally, the Board find the opinion of Dr. McKinnis is speculative and not supported by any medical rationale, and therefore, insufficient to support the claim. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). In comparison, the Board affords more probative value to the February 2011 VA examiner's opinion because the examiner reviewed the Veteran's claims file, obtained a more detailed medical history, examined the Veteran, and supported the opinion by a detailed rationale. In this regard, the Board finds the examiner's opinion that the evidence of record did not demonstrate a chronic lung disorder within ten years of service and instead attributed the Veteran's COPD to his extensive smoking history is consistent with and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). In summary, the Veteran's contentions are outweighed by the medical evidence and opinion of the February 2011 VA medical examiner. Next, the Board considers the issue of the Veteran's reported asbestos exposure and the relationship, if any, such exposure had to the development of his COPD. Pertinent to claims based on exposure to asbestos, there is no specific statutory or regulatory guidance with regard to claims of service connection for asbestos-related diseases. However, VA's Adjudication Procedures Manual addresses these types of claims. See M21-1, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3 [hereinafter M21-1] (M21-1, IV.ii.1.I.3), entitled "Developing Claims for Service Connection for Asbestos-Related Diseases" (updated Aug. 17, 2017) and M21-1, IV.ii.2.C.2 entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos" (updated Nov. 2, 2016). The manual provisions acknowledge that inhalation of asbestos fibers or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). M21-1, IV.ii.2.C.2.b. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, IV.ii.2.C.2.g. In this case, the Veteran had not claimed entitlement to service connection for an asbestos-related disease such as asbestosis or primary cancer of the lung or urogenital system. Instead, during his lifetime, he reported having metastatic lung cancer originating from service-connected bladder cancer, but also claimed entitlement to service connection for lung cancer secondary to COPD. However, COPD is a "disorder characterized by persistent or recurring obstruction of bronchial air flow, such as chronic bronchitis, asthma, or pulmonary emphysema." Dorland's Illustrated Medical Dictionary 530 (32d ed. 2012). In contrast, asbestos-related disease is interstitial in nature. See M21-1, IV.ii.2.C.2.b (identifying general effects of asbestos exposure); see also Dorland's, supra, at 161-62 (defining asbestosis as "a form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos, marked by interstitial fibrosis of the lung...."). Accordingly, a diagnosis of COPD is not indicative of exposure to asbestos. The Board also finds the Veteran's claimed exposure to asbestos unlikely based on his MOS as a seaman apprentice or seaman. Some of the major occupations involving exposure to asbestos 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 others. M21-1, IV.ii.2.C.2.d. 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. M21-1, IV.ii.2.C.2.a. Notably, the occupations involving exposure to asbestos involve physically handling materials containing asbestos. The record does not show that the Veteran had a military occupational specialty that would indicate asbestos exposure. See M21-1, IV.ii.1.I.3.c (listing MOSs with their probability of asbestos exposure) (last updated Aug. 17, 2017). However, in December 2007, he had also reported that as a deck hand, he had worked in the engine room and performed duties as a gunner's mate. Although these military occupations are documented nowhere in his service records, the Board recognizes that the probability of asbestos exposure for "engineman" is probable while risk of exposure to a gunner's mate is minimal. Id. With this evidence in mind, VA subsequently requested another VA medical opinion to consider the Veteran's COPD in the context of his previously reported military asbestos exposure. The opinion request erroneously indicated that the Veteran's service personnel records identified his MOS as fireman, which involves a high probability of asbestos exposure. Id. In fact, his service records do not document that he served as a fireman. Nevertheless, because the requested medical opinion considered an MOS with a higher probability of asbestos exposure than that of any MOS that the record shows the Veteran service as, the Board finds the opinion involves no harm to the theory of entitlement to COPD based on asbestos exposure. The September 2012 VA physician reviewed the Veteran's claims file and opined it was less likely as not that the Veteran's COPD was a result of exposure to asbestos while serving in the Navy. The physician recognized that after smoking two packs of cigarettes per day for 40 years, he had quit in 1991. However, the physician explained that cigarette smoking is the "most important factor contributing to COPD" and is "an independent risk factor for COPD." Accordingly, because the Veteran "had an extensive smoking history," it was "more likely as not the cause of the COPD...and NOT asbestos exposure." (Emphasis in original). Considering the medical and lay evidence of record, the Board finds that service connection for COPD on the basis of claimed exposure to asbestos is not warranted. The final theory of entitlement to service connection for COPD involves the Veteran's exposure to ionizing radiation as a participant of Operation DOMINIC I while serving aboard the USS Rowan (DD-782) in May 1962, as documented in his service personnel records. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown , 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, specific to radiation-exposed veterans, there are certain types of cancer that are presumptively service connected, including cancer of the lung. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d)(2)(xx). Second, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1). "Radiogenic disease" means a disease that may be induced by ionizing radiation and includes lung cancer and "any other cancer." 38 C.F.R. § 3.311(b)(2)(iv), (xxiv). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309(d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303(d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed veteran" is defined as either a veteran who while serving on active duty, or an individual who while serving on active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i). "Radiation-risk activity" is defined to include onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii)(A). The term "atmospheric detonation" includes underwater nuclear detonations. 38 C.F.R. § 3.309(d)(3)(iii). The term onsite participation means: (A) During the official operation period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A). For tests conducted by the United States, the term operational period includes Operation DOMINIC I for the period of April 25, 1962 through December 31, 1962. 38 C.F.R. § 3.309(d)(3)(v)(R). Service personnel records document the Veteran's presence aboard the USS Rowan when that ship participated in atmospheric nuclear tests in connection with Operation DOMINIC I from March 1962 to July 1962. The Board finds that the Veteran is a "radiation-exposed veteran." 38 C.F.R. § 3.309(d)(3). Parenthetically, the Board points out that the October 2012 rating decision, which granted service connection for bladder cancer and service connection for the cause of the Veteran's death due to bladder cancer, determined that the Veteran had been exposed to ionizing radiation based on participation in Operation DOMINIC. In turn, because bladder cancer is recognized both as a presumptive cancer specific to radiation-exposed veterans and as a radiogenic disease, service connection was warranted. Nevertheless, the Board finds that service connection for COPD on the basis of the Veteran's status as a radiation-exposed veteran is not warranted because COPD is neither a presumptive cancer specific to radiation-exposed veterans, nor a radiogenic disease induced by ionizing radiation. 38 C.F.R. §§ 3.309(d)(2), 3.311(b)(2). Furthermore, neither the appellant nor the Veteran during his lifetime cited or submitted any competent scientific or medical evidence that COPD is a radiogenic disease. As a result, the special development procedures provided in 38 C.F.R. § 3.311 are not for application. See 38 C.F.R. § 3.311(b)(4) (explaining VA must consider a claim based on a disease other than those listed in paragraph (b)(2) of this section if competent scientific or medical evidence is cited or submitted indicating the claimed condition is a radiogenic disease). In summary, although the Veteran was a radiation-exposed veteran, the Board finds that service connection for COPD is not warranted on any basis. Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence, so as to afford the appellant the benefit of the doubt on the question of medical etiology. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). The preponderance of the evidence now of record is against the claim for service connection for COPD. (CONTINUED ON NEXT PAGE) ORDER Service connection for COPD, to include as due to exposure to ionizing radiation or asbestos, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs