Citation Nr: 1803395 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-17 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a lung disability other than lung cancer, to include chronic obstructive pulmonary disease (COPD), as due to exposure to a herbicide agent and/or asbestos or as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Indianapolis, Indiana. The Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing in July 2014. A transcript of the hearing is included in the claims file. In a February 2017 letter, the Veteran was informed that the VLJ who conducted the July 2014 hearing is no longer available to participate in the adjudication of his claim. The Veteran was provided the opportunity to request a new hearing in accordance with 38 C.F.R. § 20.707 and 20.717 (2017), but responded in February 2017 that he did not want another hearing. The Board will therefore proceed with a decision in this case. In December 2015, the Board denied the claim for entitlement to service connection for a lung disability other than lung cancer (characterized as service connection for lung disease). The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In June 2016, the Court granted a Joint Motion for Remand filed by the parties, vacating and remanding the Board's December 2015 decision. The appeal has now returned to the Board. FINDING OF FACT A chronic lung disability other than lung cancer was first demonstrated years after service and is not etiologically related to any incident of service including exposure to a herbicide agent or asbestos exposure, and is not secondary to service-connected diabetes mellitus. CONCLUSION OF LAW A chronic lung disability other than lung cancer was not incurred in or aggravated by active duty service and is not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that service connection is warranted for a lung disability other than lung cancer, to include COPD, as it was incurred due to exposure to a herbicide agent and/or asbestos in active duty service. In the alternative, the Veteran contends a lung disability was caused or aggravated by service-connected diabetes mellitus. The Board will first address the Veteran's claim for service connection on a direct basis. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The record establishes the presence of a current disability. VA and private treatment records clearly document findings and diagnoses of COPD dated throughout the claims period. A September 2001 chest X-ray also demonstrated changes in the lungs indicative of mild interstitial fibrosis in addition to emphysematous COPD. There are no other findings of interstitial fibrosis in the record and a VA expert in pulmonology noted in October 2017 that the record did not actually confirm the diagnosis of interstitial lung disease (ILD). The VA expert noted that the September 2001 X-ray findings were also suggestive of atypical pneumonia, COPD with chronic bronchitis, congestive heart failure, and other infectious and neoplastic causes. However, the Board will resolve any doubt in the Veteran's favor and find that current lung disabilities of COPD and interstitial fibrosis are established. The Board must now determine whether an in-service injury is present. Service treatment records are negative for complaints or findings of a chronic lung disorder. The Veteran was seen in December 1967 for a cough associated with chest pain, a sore throat, and clogged sinuses. There is no other evidence of respiratory complaints in the service treatment records and the Veteran's lungs and chest X-ray were normal at the August 1968 separation examination. He also denied experiencing asthma, shortness of breath, pain or pressure in the chest, or a chronic cough on the accompanying report of medical history. Despite the lack of a chronic condition in the service treatment records, an in-service injury is established. The Veteran had verified active duty service in the Vietnam and his exposure to herbicides is therefore presumed. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran also reports he was exposed to asbestos while on the USNS Barrett during transport to Vietnam. He is competent to report potential asbestos exposure in service and the Board accepts his reports of asbestos exposure as true. Thus, the record establishes an in-service injury through the Veteran's exposure to herbicide agents and asbestos. The Board will now turn to the third element of direct service connection: a nexus between the current disability and in-service injury. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309. COPD and interstitial lung disease are not included on the list of diseases presumptively associated with exposure to certain herbicide agents and service connection on a presumptive basis is not possible. Although service connection is not appropriate for the Veteran's disability on any presumptive bases, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of actual direct causation, i.e. a link between the Veteran's current disability and in-service exposure to herbicides or asbestos. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board notes that there is no specific statutory guidance concerning asbestos claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting asbestos exposure. The Court has also held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. Manual at Subsection (h). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. As noted above, the Board has resolved any doubt in the Veteran's favor and finds that he was exposed to asbestos while travelling aboard the USNS Barrett to Vietnam. In a November 2012 statement, the Veteran reported that the USNS Barrett broke down during the voyage to Vietnam and he was stranded for several days at Subic Bay, Philippines and during that time, his sleeping quarters were below the deck and ventilation system which were covered in asbestos. The Board has therefore determined that the Veteran was exposed to asbestos during his time aboard the USNS Barrett while travelling to Vietnam. The Veteran does not allege, and the record does not demonstrate, any other in-service exposure to asbestos and further development is not necessary. However, the record does establish post-service exposure to asbestos. A July 2015 private hospital record and March 2016 VA pulmonary note both note the Veteran's post-service occupational exposure to asbestos through his work in a foundry. These reports of asbestos exposure are contrary to the Veteran's July 2014 testimony that he only worked as a salesman and was not around any chemicals after service. The Board finds that the Veteran's statements regarding his history of asbestos exposure provided in the context of medical treatment are more credible than those provided in support of a claim for compensation benefits. The Board therefore finds that the Veteran had in-service exposure to asbestos while aboard the USNS Barrett, but also had post-service asbestosis exposure through his work in a foundry. VA's Manual contains some additional information pertaining to the Veteran's claim and indicates that asbestos exposure can result in interstitial lung disease, such as that identified on the Veteran's September 2001 chest X-ray. M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumors, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Although the Manual acknowledges the possibility of a link between asbestos exposure and interstitial lung disease, medical nexus evidence is required in claims for asbestos-related diseases linked to alleged in-service asbestos exposure. VAOPGCPREC 4-00; 65 Fed. Reg. 33,422 (2000). The Board must therefore determine whether the evidence establishes the Veteran's lung disease was incurred specifically due to in-service asbestos exposure. Service and post-service treatment records do not support the claim for service connection as directly due to a herbicide agent or asbestos exposure. As noted above, service treatment records are negative for any chronic lung conditions and the Veteran's lungs and chest X-ray were normal at the August 1968 separation examination. The Veteran also specifically denied experiencing any respiratory symptoms on the accompanying report of medical history. There is also no evidence of a chronic lung disability until more than 30 years after separation in September 2001, when the Veteran was diagnosed with chronic bursitis, shortness of breath, and a cough by a private physician. A chest X-ray at that time demonstrated changes in the lungs indicative of mild interstitial fibrosis and COPD. The absence of any clinical evidence for decades after service weighs the evidence against a finding that the Veteran's disabilities were present in service and is one of the factors used by the Board in determining whether a link exists between the claimed disability and an in-service injury. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The weight of the competent evidence is also against the claim and links the Veteran's COPD to tobacco use. The Veteran has not submitted any medical evidence in support of the claim for direct service connection, and his VA and private treatment records document findings of COPD and lung disease in the context of his tobacco use. His physicians regularly counseled smoking cessation and a December 2016 VA examiner characterized the Veteran's need for continuous oxygen as "due to his tobacco-induced COPD." Additionally, the only medical opinions of record, those of the October 2017 VA pulmonologist weigh against service connection based on exposure to herbicide agents or asbestos. After reviewing the claims file, the VA expert determined that it was less likely than not that the Veteran's lung disability was related to exposure to herbicide agents and/or asbestos during active duty service. The VA expert specifically noted the Veteran's extensive history of tobacco use-the Veteran smoked cigarettes for 40 years consisting of one to two packs per day. According to the VA expert, more than 90 percent of all COPD cases are casually related to smoking with about 10 percent related to "prolonged environmental exposure" to dust, fumes, and other toxic chemicals (emphasis added). Regarding herbicide agent exposure, the examiner noted that the Veteran's respiratory symptoms were first noticed in 2001, more than 30 years after service, and during his long life-span he continued to smoke while his exposure to herbicide agents ceased with separation from service in 1968. Similarly, with respect to the Veteran's asbestos exposure, the VA expert noted that the Veteran's exposure during service was relatively brief compared to his post-service occupational exposure from foundry work. The expert again noted that COPD is commonly caused by smoking and much less commonly due to prolonged environmental exposures. Interstitial lung disease from asbestos exposure occurs with prolonged, high dose exposure to asbestos fibers and the Veteran's in-service exposure, consisting of his time aboard ship while travelling to Vietnam, was not the cause of his disability. The Board finds that the VA expert's medical opinion is well-explained, includes a full rationale, and is based on a full review of the Veteran's history. It is therefore of great probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has considered the Veteran's statements in support of the claim. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007) (lay persons not competent to diagnosis cancer). The Veteran is competent to testify as to observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. Furthermore, the Board notes that the Veteran has not reported a history of continuing symptoms since service. The Board discusses the Veteran's reported symptoms in the context of using lay evidence to prove the nexus element of a service connection claim under 38 C.F.R. § 3.303(a) and (d), but not 38 C.F.R. § 3.303(b). See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's contentions regarding direct service connection are clearly outweighed by the competent medical evidence of record, including the October 2017 VA medical expert opinion, and service connection for a lung disability other than lung cancer as directly due to service is not warranted. Turning to whether service connection is warranted on a secondary basis, service connection is provided for a disability which is proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran contends that his lung disability is caused or aggravated by service-connected diabetes mellitus. There is no competent evidence in support of the claim for secondary service connection. None of the Veteran's treating physicians have indicated a link exists between the service-connected diabetes and lung disease, and as noted above, the Veteran is not competent to provide an opinion regarding the etiology of his claimed disability. Jandreau, 429 F.3d at 1377. Additionally, the October 2017 VA medical expert specifically found that the Veteran's lung disability was not caused or aggravated by diabetes mellitus. The expert found that while observational studies suggest that diabetes can worsen the progression of COPD, the Veteran's lifelong history of smoking is proven to cause and progress COPD. As such, it is less likely than not that the Veteran's lung disability is caused or aggravated by service-connected diabetes. In support of his claim, the Veteran has submitted some internet and medical study information regarding a possible connection between diabetes and COPD. The Board finds that this evidence is not very probative and is clearly outweighed by the other evidence against service connection, particularly the October 2017 VA expert opinion. In order to establish service connection by means of such treatise (textbook or article) evidence it must "not simply provide speculative generic statements not relevant to the veteran's claim." See Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, standing alone, the evidence must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The articles submitted by the Veteran do not contain the level of detail or specificity necessary to support the claim for service connection. The articles note that diabetes often occurs in individuals with COPD and the two conditions have "a close association." However, as stated in the first study submitted by the Veteran, "there are still many issues that need to be clarified about this association...the exact prevalence of the association between diabetes and COPD varies between studies reported." The information submitted by the Veteran also points to the importance of smoking in the formation of diabetes and lung disease and recognizes common outside processes (such as smoking and obesity) as affecting the formation of both conditions. None of the articles submitted by the Veteran identifies the nature of a link between diabetes and COPD with any specificity or draws a clear etiological relationship; instead, the articles note that the relationship between the two is not well understood. The Board therefore finds that these articles do not have the requisite "degree of certainty" required by Wallin and Sacks, supra; see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (indicating that medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (stating that "generic statement about the possibility of a link between chest trauma and restrictive lung disease . . . [is] too general and inconclusive ..."). Accordingly, they are clearly outweighed by the competent evidence against the claim, including the October 2017 VA expert opinion and service connection on a secondary basis is not warranted. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's lung disability was many years after his separation from active duty service. In addition, the weight of the competent evidence is clearly against a finding that any lung disability other than lung cancer is related to any event or exposure during active duty service or service-connected diabetes mellitus. The weight of the evidence is therefore also against a nexus between the claimed disability and active duty service or a service-connected disability. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim on any basis and it is denied. 38 U.S.C. § 5107(b) (2012). ORDER Entitlement to service connection for a lung disability other than lung cancer, to include COPD, as due to exposure to a herbicide agent and/or asbestos or as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs