Citation Nr: 1752113 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 08-22 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as breathing problems as a result of asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to service connection for an asbestos-related lung condition. In November 2010, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO in Boston, Massachusetts. A transcript of the hearing has been associated with the claims file. This case was remanded by the Board in June 2011 and May 2014 for further development, and the case has since been returned to the Board for adjudication. FINDING OF FACT The Veteran's respiratory disorder diagnosed as chronic obstructive pulmonary disease (COPD) and pulmonary nodules is not related to his service or any incident thereof. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a respiratory disorder. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in June 2011 and May 2014, the Board recently remanded the Veteran's respiratory disorder claim and ordered the agency of original jurisdiction (AOJ) to obtain outstanding medical treatment and service personnel records as well as provide the Veteran with VA examinations for his respiratory disorder claim. The Veteran's claim was to then be readjudicated. Pursuant to the Board remand instructions, outstanding medical treatment and service personnel records were obtained and associated with the Veteran's claims folder. Also, he was provided a VA examination in September 2016 to determine the etiology of his respiratory disorder. The Veteran's claim was readjudicated most recently via a November 2016 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been substantially complied with regarding the Veteran's respiratory disorder claim. 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]. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2010. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. Service connection for a respiratory disorder The Veteran contends that he has a respiratory disorder that is related to asbestos exposure while serving in the Navy. See, e.g., a statement from the Veteran dated July 2007. Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 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, 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 exposure 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. 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 (2017). 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. With respect to a current disability, the Veteran has been diagnosed with COPD and pulmonary nodules. See, e.g., a September 2016 VA examination report. The Board further finds that the evidence of record is against a finding that the Veteran has asbestosis. In this regard, the Veteran was provided a VA respiratory examination in September 2016. In a medical opinion report dated October 2016, a VA examiner concluded after review of the examination report and the Veteran's medical history that the Veteran does have asbestosis. His rationale was based on his review of chest CT scans dated August 2014 and December 2014 which were absent findings of diffuse interstitial pulmonary fibrosis. The CT images further showed no evidence of pleural plaques. As such, the examiner determined that the Veteran did not have asbestosis or any other asbestos related disease or disorder. The October 2016 VA medical report was based upon thorough review of the record 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"]. The Board further notes that there is no medical evidence of record which indicates that the Veteran has asbestosis or another asbestos-related disease. To the extent that the Veteran asserts that he currently has asbestosis or another asbestos-related disease, the Board observes that lay people are competent to testify to visible or otherwise observable symptoms of disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Veteran's statements that he has asbestosis relates to an etiological question as to an internal, not directly observable disease such as valvular heart disease, unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The lay statements of the Veteran concerning the presence of asbestosis are therefore not competent in this regard, and the Board has placed greater probative weight on the opinion proferred by the VA examiner who opined that the Veteran did not have asbestosis. Accordingly, the Board finds that the Veteran does not currently suffer from asbestosis or other asbestos-related lung disease. With regard to in-service incurrence of a disease or injury, the Veteran essentially contends that while serving on board the USS Coontz, he was exposed to asbestos in the form of pipe covers. He reported that he sometimes had to go to the engine room of a ship and remove bags of asbestos, without protection. He reported that asbestos was "floating all over the space" and that it was going through the ventilation system. He further reported that he was exposed to oil paint and fuel fumes. The Veteran's service personnel records confirm that he served aboard the USS Coontz and that his military occupational specialty was a boatswain's mate. His personnel records further indicate that his training involved working in an engine room as well as with gasoline fire. Given the nature of the Veteran's duties, the Board resolves the benefit of the doubt in the Veteran's favor and recognizes that it is conceivable that the Veteran worked in close proximity to asbestos while serving aboard a naval vessel. The Board also notes that the Veteran's service treatment records document treatment for a sore throat and wheezing in July 1974, a cold in January 1975 as well as in June and September 1976, an upper respiratory infection in January 1977, and a viral syndrome in July 1977. However, his July 1978 separation examination revealed a normal chest examination. The Board finds that a preponderance of the competent and probative evidence is against a finding that the Veteran's current COPD and pulmonary nodules is related to his service, to include asbestos exposure. The only competent medical opinion of record concerning the issue of nexus is the report of the October 2016 VA examiner. As discussed above, the Veteran was provided a VA respiratory examination in September 2016 at which time he was diagnosed with COPD and pulmonary nodules. After consideration of the Veteran's medical history, the October 2016 examiner opined that it is less likely than not that the Veteran has a respiratory disorder that is related to service. Notably, the examiner considered the Veteran's report of in-service exposure to oil paint, fuel fumes, and asbestos as well as the Veteran's in-service respiratory treatment. However, he opined that the Veteran's current respiratory disorder is related to the Veteran's history of smoking cigarettes. In determining such, the examiner noted review of the Veteran's chest CT scans and the Veteran's medical history which indicated that the Veteran's current respiratory disorder is due to his history of smoking rather than any incident in service. The October 2016 VA examiner's report was based upon thorough review of the record 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 examiner's opinion is consistent with the Veteran's medical history, which is absent any symptomatology of a respiratory disorder for several years after service. The Board notes that the Veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence of a nexus between his respiratory disorder and his service, to include asbestos exposure. As discussed above, the Board finds that the Veteran as a lay person is not competent to associate any of his claimed symptoms to a particular disability. Furthermore, the Veteran is not competent to opine on matters such as the etiology of his current respiratory disorder. Such opinion requires specific medical training in the field of pulmonology and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training in the field of pulmonology to render medical opinions, the Board must find that his contention with regard to a nexus between his respiratory disorder and his service, to include asbestos exposure, to be of minimal probative value and outweighed by the objective evidence which is absent a finding of such. See also 38 C.F.R. § 3.159(a)(1) (2017) [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 Veteran in support of his own claim are not competent evidence of a nexus. (CONTINUED ON NEXT PAGE) In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder to include as due to asbestos exposure. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a respiratory disorder, claimed as breathing problems as a result of asbestos exposure is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs