Citation Nr: 1803789 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 15-30 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include asbestosis, chronic obstructive pulmonary disease (COPD), and emphysema. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In a May 2017 Board decision, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a November 2017 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran is not diagnosed with asbestosis. 2. The Veteran does not have a respiratory disability, to include COPD and emphysema, that had its onset during active service, or is otherwise causally related to active service or any incident therein. 3. An acquired psychiatric disorder, to include depression, is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A respiratory disability, to include asbestosis, COPD, and emphysema, was not incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, (2017). 2. An acquired psychiatric disorder, to include depression, not incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran and his representative have raised no 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). Pursuant to the May 2017 Board Remand, the identified VA treatment records were obtained. Additionally, the Veteran was afforded VA examinations with medical opinions in July 2017 as to the pending claims. The reports provided by the VA examiners reflect that they thoroughly reviewed the Veteran's past medical history and rendered findings that are responsive to the rating criteria. The Board therefore concludes that the July 2017 VA examinations and medical opinions are sufficient for evaluation purposes. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). As such, the Board finds that VA has complied with the mandates of the May 2017 Board Remand and does not have a duty to assist that is unmet. Neither the Veteran nor his representative has argued otherwise. II. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is no legal presumption with respect to service connection due to asbestos exposure. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Rather, VA must analyze claims of service connection for asbestosis or asbestos-related disabilities under the administrative protocols set forth in the VA Adjudication Procedure Manual M21-1. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms that are in his or her personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Id. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2017); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Here, the Veteran contends that he incurred a respiratory disability during his military service. Specifically, he has asserted that he developed a respiratory disability as a result of exposure to asbestos and environmental hazards while performing his military duties. See, e.g., the Veteran's statement dated April 2013. For the reasons set forth below, the Board concludes that service connection is not warranted. As indicated above, the Veteran served on active duty from May 1961 to May 1964. His service treatment records (STRs) indicate that he was diagnosed with sinusitis in June 1961 and May 1962. In May 1963, the Veteran complained of headaches and cold symptoms including a sore throat. In August 1963, he complained of sinus headaches, cough, sinus congestion, and malaise; a diagnosis of sinusitis was again indicated. The Veteran's May 1964 separation examination did not document any continuing respiratory symptoms or related diagnoses. The Veteran asserts that he was exposed to asbestos and other environmental hazards during the performance of his duties while serving with the 9th Combat Engineering Battalion in Aschaffenburg, Germany. Specifically, he reports that he worked on heavy equipment where asbestos dust was prevalent, including changing wheel brakes and clutch assemblies on graders, excavators and trucks; used solvents to thin the lead-based paint material for spraying; and worked with German demolition crews to raze old structures, including barracks. He contends that the reason the buildings were razed were that they had been found unfit for human use because of asbestos. The Veteran's contentions are consistent with his military occupational specialty (MOS) of combat engineer. Moreover, in a memorandum dated July 2017, the AOJ conceded the Veteran's exposure to asbestos during his military service, although such exposure was minimal. The Veteran submitted pulmonary function testing results dated in April 2010 in support of his contention; which indicate a diagnosis of asbestosis; however, this diagnosis is not confirmed by radiographic evidence of parenchymal lung disease. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, Subpart ii, Chapter 2, Section C (hereinafter Manual). The Veteran was afforded a VA examination in September 2013 at which time the examiner noted that the Veteran was diagnosed with COPD and emphysema in the 1990's. The examiner reviewed the Veteran's medical history and determined that the claimed respiratory condition "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained, "[t]he Veteran does not have chronic sinus infections or a history of sinusitis. He was treated in 1961, 1962, and 1963 while in service but the condition resolved and on exit from the military in 1964 there was no mention of a sinusitis." The examiner continued, "[h]is condition has not recurred since his discharge in 1964. He has not been on antibiotics and there is no mention of chronicity of care for sinusitis." VA treatment records dated in December 2014 document diagnoses of COPD and asthma. In April 2015, he was diagnosed with acute bronchitis; continuing diagnoses of COPD and asthma were also indicated. VA treatment records dated in October 2015 noted diagnoses of severe COPD and pulmonary fibrosis. In a February 2016 pulmonary consultation, it was noted that the Veteran had an extensive history of smoking. The treating pulmonologist stated, "[w]ith regard to asbestos related lung disease including asbestosis, CT scan of the chest which was completed [in] 2013 did not reveal findings consistent with pulmonary fibrosis or asbestosis." He further explained, "[f]indings were primarily consistent with mild pleural thickening which was noncalcified and pulmonary nodules calcified and noncalcified. These findings have been stable since 2011 without any significant change." A diagnosis of severe COPD was noted. Pursuant to the May 2017 Board Remand, the Veteran was afforded a VA respiratory examination in July 2017, at which time the examiner confirmed a current diagnosis of COPD. The examiner interviewed the Veteran, performed a detailed review of his medical history, and consulted pertinent medical literature. He then determined that the claimed respiratory disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. Rather, the examiner determined that the diagnosed COPD is likely related to the Veteran's long term history of chronic smoking. The examiner explained, "[a]s per STRs, there is no evidence that Veteran had respiratory problems while in military from 1961 to 1964, except seasonal upper respiratory infections/sinusitis, which was treated adequately without any chronicity. Veteran was discharged from military in 1964." The examiner noted that the Veteran "has been a chronic smoker with a 40+ year smoking history. He has started developing symptoms since 2001." The examiner further stated, "[a]s per x-ray, CT scan, PET scan and bronchoscopy reports, there is no evidence of any changes consistent with asbestos exposure. His findings are more diagnostic of COPD only. This is also corroborated by pulmonary notes, where Veteran is being seen regularly." The examiner noted that COPD and emphysema are overlap conditions and are not two different diagnoses; he supported this statement with a detailed explanation of pertinent medical literature. The examiner then reviewed the risk factors for COPD, including smoking and environmental exposures. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the findings of the July 2017 VA examiner were thoroughly explained and fully supported by the evidence of record. To this end, the Board notes that the July 2017 examiner's nexus opinion was based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. His conclusion was also based on the character of the Veteran's current respiratory pathology which the examiner explained, based on his medical training, was not consistent with an in-service injury, such as asbestosis or environmental hazard exposure. The Board therefore places significant weight on the findings of the July 2017 VA examiner. See Nieves-Rodriguez, supra; see also 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"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed respiratory disability and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that the currently diagnosed respiratory disability was incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 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); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theory regarding the diagnosis and etiology of his respiratory disability are contradicted by the conclusion of the July 2017 VA examiner who specifically considered the Veteran's lay statements in rendering his negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the July 2017 VA examination to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, however, the Veteran's contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed COPD, are contradicted by the findings of the July 2017 VA examiner who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. Moreover, as set forth above, the contemporaneous clinical evidence, including the May 1964 separation examination which shows that the Veteran's respiratory system was normal at separation, do not support his contentions of continuous symptoms since service. Considering the overall evidence, including the post-service medical evidence, the uncontradicted July 2017 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from a respiratory disability, which is related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. With respect to the claimed depression, the evidence of record, in particular the July 2017 VA psychological examination, indicates that the Veteran has no diagnosed acquired psychiatric disorder, including depression. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability). Moreover, the Veteran has asserted entitlement to service connection for an acquired psychiatric disorder as secondary to his respiratory disability. There is no evidence to suggest, nor does the Veteran contend, that his claimed depression is directly due to his military service, or any other service-connected disability. Rather, he specifically argues that he developed depression due to his respiratory disability. See Veteran's claim dated December 2010. Critically, as explained above, service connection has not been established for a respiratory disability. Accordingly, service connection for an acquired psychiatric disorder, to include depression, is not warranted. 38 C.F.R. § 3.310. ORDER Entitlement to service connection for a respiratory disability, to include asbestosis, COPD, and emphysema, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs