Citation Nr: 1803166	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  10-39 096	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for asbestosis.

2.  Entitlement to service connection for heart condition, to include cardiovascular disease quadruple bypass as due to herbicide exposure. 

3.  Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure.   

4.  Entitlement to service connection for erectile dysfunction to include as secondary to diabetes mellitus.

5.  Entitlement to service connection for residuals of a stroke.

6.  Entitlement to service connection for carotid artery surgery. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J.A. Williams, Associate Counsel 


INTRODUCTION

The Veteran served on active military duty from August 1964 to February 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 
The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in November 2016.  A transcript of the hearing has been associated with the Veteran's claims file.  
The issues of entitlement to service connection for a heart condition, diabetes mellitus, erectile dysfunction, residuals of a stroke, and carotid artery surgery are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence is not sufficient to show that the Veteran had asbestosis during the appeal period. 



CONCLUSION OF LAW

The criteria for service connection for asbestosis are not met.  38 U.S.C. § 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§3.102, 3.303, 3.304 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims.  VA has, however, issued a circular on asbestos-related diseases.  DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos.  The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000).

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.  See M21-1, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h).

In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 9 (b).

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, 9 (f).

The Veteran asserts that asbestos exposure in service caused asbestosis.  Specifically, he contends that while aboard the USS FORRESTAL in 1967, an explosion occurred.  See April 2010 Notice of Disagreement; November 2016 Hearing Transcript.  He reported that the flight deck was blown up causing him to be exposed to asbestos.  The Veteran's personnel records confirm his presence at the explosion on USS FORRESTAL.  Id.  In addition, the Veteran's personnel records indicate that his military occupational specialty was an Aviation Structural Mechanic, which make his probability of asbestos exposure likely.  Thus, in-service exposure to asbestos is substantiated.

However, in order to be considered for service connection, a claimant must first have a disability.  Here, the medical evidence does not show a diagnosis of asbestosis.  

A July 2017 medical opinion by pulmonologist Dr. D.M.C. indicates that the medical evidence does not show any indication of asbestosis.  The examiner reasoned as follows:
	
Asbestosis has specific findings that manifest on chest imaging in the form of an X-ray or computed tomography (CT); the latter tends to be more sensitive than the former.  Therefore, although the original decision denying the existed of service-connected asbestosis refers to nuclear medicine reports, the most compelling records in this case are [the Veteran's] CTs from 2010 and 2011.  Neither of these describes the characteristic abnormalities of asbestosis.  Even accounting for typical lag time (20-30 years, see, e.g. "Asbestos-related diseases") between asbestos exposure and the development of clinical and/or radiographic disease, such abnormalities should have been present by 2010 from an alleged exposure in 1967.  The lack of those abnormalities is a compelling indicator that [the Veteran] does not have asbestosis, and is supported by the concurrent lack of specific abnormalities on physical exams, chest X-rays, and pulmonary function studies found in his records.  

Dr. D.M.C. also included a more expansive basis for his opinion including excerpts from and comments on pertinent medical records.  

Notably, an August 2012 Disability Benefits Questionnaire completed by K.M., Family Nurse Practitioner, states that the Veteran has a diagnosis of granulomata caused by secondhand smoke and asbestos exposure in service.  In a September 2017 addendum medical opinion, Dr. D.M.C. explained that the finding by K.M. was inaccurate.  Dr. D.M.C. further explained that the Veteran has tiny nodules in his left lung, as noted in his CT-thorax without contrast from September 2011.  "These nodules, particularly when they contain calcium deposits, are most commonly due to prior granulomatous-type inflammation, hence the term 'granuloma' being used to refer to such nodules when they are found on imaging.  While 'granulomata' is listed as a respiratory condition (diagnosed as of January 2010) on the abovementioned questionnaire, they would be more accurately described as a finding; granulomata do not cause pulmonary dysfunction in and of themselves.  Instead they reflect prior lung inflammation, which commonly resolves without resulting dysfunction." (emphasis in original).

Dr. D.M.C. further explained that granulomata are not a characteristic of secondhand smoke exposure, or of asbestos-related lung disease.  In sum, Dr. D.M.C. concluded that the Veteran does not have any identifiable pulmonary condition that is at least as likely as not connected to his military service.  
The Board finds Dr. D.M.C.'s opinion adequate and highly probative to the question at hand.  He possessed the necessary education, training, and expertise to provide the requested opinion.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In addition, he provided an adequate rationale for his opinion, and his opinion was based on a thorough review of the service treatment records, the post-service treatment records and examinations, and the lay statements of the Veteran.  The opinion considered an accurate history, was definitive and supported by a detailed rationale that considered the lay and medical evidence.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

The Board has considered the Veteran's assertion that Dr. D.C.M.'s opinion is inadequate because it failed to discuss the Veteran's reported COPD and bronchiectasis.  See January 2018 Informal Hearing Presentation.  However, the Board finds that the examiner is not required to explicitly mention every diagnosis.  Dr.  D.C.M.'s detailed rationale indicates that he thoroughly reviewed the medical records and after multiple reviews of records concluded that the Veteran did not have any identifiable pulmonary condition that is at least as likely as not connected to his military service.  

In sum, the more probative evidence of record indicates that the Veteran does not have a current asbestosis disability.  In order to be considered for service connection, a claimant must first have a disability.  In Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), the Court of Appeals for Veterans Claims (Court) noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  The Court has held that this requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013) (holding that "when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.").

Service connection for asbestosis is not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Entitlement to service connection for asbestosis is denied.  


REMAND

The Veteran, through his representative, has asserted that his heart condition, diabetes mellitus, erectile dysfunction, residuals of a stroke, and carotid artery surgery are proximately due to or aggravated by his service connected posttraumatic stress disorder (PTSD).  See January 2018 Informal Hearing Presentation.  

In support of this assertion the Veteran sites to an October 2010 VA psychiatric examination in which the Veteran reported that after separation he used to over work.  He worked 80 to 100 hours a week and found that working excessively and being away from his family allowed him to cope with his PTSD symptoms.   

The Veteran also included several articles and medical treatises discussing PTSD and cardiovascular disease, PTSD and diabetes, and the relationship between diabetes and mental health.  Thus, on remand, the Board will afford the Veteran a VA examination and procure a medical opinion that addresses direct and secondary service connection theories of entitlement.  

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran VA examinations for his a heart condition, diabetes mellitus, erectile dysfunction, residuals of a stroke, and carotid artery surgery.  For each claimed disability (i.e. heart condition, diabetes mellitus, erectile dysfunction, residuals of a stroke, and carotid artery surgery) express an opinion as to the following:

(a)  Is it at least as likely as not (i.e., probability of 50 percent or greater) that the disability began in military service or is otherwise etiologically related to an event in service?

(b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the claimed disability was caused OR aggravated by (i.e., permanently worsened beyond the natural progress of the disorder) by his service-connected PTSD.  

2.  Readjudicate the appeal. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).


______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs