Citation Nr: 18155390 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-23 961 DATE: December 4, 2018 ORDER Entitlement to service connection for respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and emphysema, and to include as due to in-service exposure to oil, smoke, and/or asbestos, is denied. REMANDED Entitlement to service connection for diabetes mellitus with retinopathy, to include as due to in-service exposure to oil, smoke, and/or asbestos, is remanded. Entitlement to service connection for Charcot disease of the right foot, to include as secondary to diabetes mellitus with retinopathy, is remanded. FINDING OF FACT The competent, probative evidence does not show a respiratory disorder, to include COPD and emphysema, is causally or etiologically related to service, to include in-service exposure to oil, smoke and/or asbestos. CONCLUSION OF LAW The criteria for service connection for respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from October 1976 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board notes that there is no specific statutory or regulatory guidance concerning claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considered asbestos compensation claims. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, and an asbestos-related disease can develop from brief exposure to asbestos. It further indicates that inhalation of asbestos fibers 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). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. The Board also points out that the pertinent parts of the guidelines on service connection in asbestos-related cases are not substantive rules and that there is no presumption that a Veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for respiratory disorder, to include COPD and emphysema, and to include as due to in-service exposure to oil, smoke, and/or asbestos The Veteran and his representative assert the Veteran has respiratory disorders, to include COPD and emphysema, due to in-service exposure to oil, smoke and/or asbestos. The Veteran does not contend such respiratory disorders are directly related to any other event, injury, or illness in service or that he has had continuous symptoms of such since service. Rather, he specifically asserts such disorders develop later in life after such exposure. The record reflects diagnoses of and treatment for respiratory problems, to include COPD and emphysema, during the pendency of the appeal. Accordingly, the Board finds the first element for establishing service connection has been met. As for the second element, the RO conceded the Veteran’s in-service exposure to asbestos and other toxic materials in the March 2016 Statement of the Case. Accordingly, an in-service event is established for the purpose of service connection. Concerning the third element, the medical evidence of record does not relate a currently diagnosed respiratory disorder to the Veteran’s conceded in-service exposure to asbestos and other toxic materials. Following a review of the Veteran’s records and in-person examination in April 2016, the VA examiner opined the Veteran’s claimed respiratory condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted the Veteran’s in-service job as a welder in a submarine from 1978 to 1980 and that the Veteran was a smoker. The examiner also noted that occupational environments were risk factors for COPD; however, according to the examiner, such risk was less than that of smoking. In a worker who has never smoked and who has developed COPD in the absence of other lung disease, the examiner did note that workplace exposure to dust and other chemical agents are possible causative factors. In this respect, the level of exposure determines the degree of risk. Given the variety of agents that have now been reported to cause COPD, the examiner stated it could not be assumed that occupational exposure to an inhaled substance was free from risk. In this case, however, the VA examiner concluded that there was not enough evidence to confirm the Veteran’s lung problems were related to the active duty job as a welder. The examiner also found probative the absence of continuity of care for lung problems. In June 2016, a VA examiner found appropriate testing did not show findings of COPD or emphysema. In addition, the VA examiner opined there was no indication of residual symptoms from the Veteran’s asbestos exposure. Similarly, a July 2016 VA examiner concluded there was no objective evidence of COPD or emphysema on examination in April 2016, and as such, the VA examiner did not proffer a nexus opinion. Upon review, the Board finds the April 2016 VA examiner’s opinion, with consideration of the negative findings on subsequent examination, deserves significant probative value as it was based on a review of the record and contains clear conclusion with supporting data and reasoned medical explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary, but rather only the Veteran’s lay statements asserting a positive nexus. In this respect, a layperson without medical training is not qualified to render a medical opinion regarding the etiology of respiratory disorders such as COPD and emphysema. See 38 C.F.R. § 3.159(a)(1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, however, the Board finds the relationship between the Veteran’s current respiratory disorders and in-service exposure to oil, smoke, and/or asbestos is beyond the competence of a lay person. See Barr v Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). Further, the evidence does not show the Veteran possesses the requisite training or credentials needed to render a competent opinion as to the medical causation of such respiratory disorders. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Veteran’s lay opinion does not constitute competent medical evidence and lacks probative value. Based on the foregoing, the Board finds the preponderance of evidence is against service connection for respiratory disorder, to include COPD and emphysema. In reaching such conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine does not apply, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus with retinopathy is remanded. The Board regrettably finds remand for further development is warranted. The Veteran and his representative assert that the Veteran is entitled to service connection for diabetes mellitus with retinopathy due to exposure to his asbestos and other toxic materials while on active duty. While there is medical evidence on file, there is no VA examination or medical nexus opinion. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). In the present case, the record demonstrates a diagnosis of and treatment for diabetes mellitus with retinopathy during the appeal period. Accordingly, the first element for meeting the McLendon test has been met. With respect to the second element, as noted above, the RO conceded the Veteran’s in-service exposure to asbestos and other toxic materials in the March 2016 Statement of the Case. Accordingly, the Board finds the second element for establishing the McLendon test has been met. As for the third element, the Veteran asserts his diabetes mellitus is associated with such exposure and that he has had continuous symptoms since such exposure. The Veteran’s statements are competent, to this extent, as he is conveying facts or circumstances and matters that can be observed and described by a lay person. Accordingly, the Board finds that the third element for establishing the McLendon test has been met. And regarding the final element, the evidence does not include a medical opinion concerning a nexus. Accordingly, VA examination is warranted. 2. Entitlement to service connection for Charcot disease of the right foot is remanded. The Veteran and his representative assert Charcot disease of the right foot is related to his diabetes mellitus with retinopathy. To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In the present case, the record reflects a diagnosis of Charcot disease of the right foot during the appeal period. With respect to the second element, the Board notes diabetes mellitus is not currently service-connected; however, the Board remands that issue herein. As the Veteran’s service connection claim for Charcot Disease of the right foot is, at least in part, dependent on the establishment of service connection for diabetes mellitus, the issues are inextricably intertwined and the development of one could impact the other. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). As a result, remand is warranted as to the Veteran’s service connection claim for Charcot disease of the right foot. Furthermore, if service connection is granted for diabetes mellitus, the questions as to whether the Veteran’s Charcot disease of the right foot is related to such and/or directly to service are complex medical determinations for which the Veteran’s lay statements are not competent. Therefore, the Board finds VA examination is warranted to determine the etiology of the Veteran’s Charcot disease of the right foot. The matters are REMANDED for the following actions: 1. Any outstanding VA treatment records should be associated with the claims file. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran also should be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After the above development has been completed, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s diabetes mellitus with retinopathy. All studies, tests, and evaluations that are deemed necessary should be conducted. The Veteran’s claims folder, including a copy of this Remand, should be reviewed by the examiner and such review recorded. The examiner should then: (a.) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any currently diagnosed diabetes mellitus is causally or etiologically related to active duty service, to include the Veteran’s conceded exposure to oil, smoke, and asbestos. (b.) Provide an opinion as to whether it is at least as likely as not that diabetes mellitus manifested within one year of the Veteran’s separation from service (i.e. August 1980 to August 1981). 3. Then, afford the Veteran a VA examination by an examiner with appropriate expertise to determine the nature and etiology of Charcot disease of the right foot. All studies, tests, and evaluations that are deemed necessary should be conducted. The Veteran’s claims folder, including a copy of this Remand, should be reviewed by the examiner. The examination report should note review of the record. The examiner should then: (a.) If service connection for diabetes mellitus is established, provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the currently diagnosed Charcot disease of the right foot is caused or aggravated by the Veteran’s diabetes mellitus. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. (b.) If service connection is not awarded for diabetes mellitus, provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any Charcot disease of the right foot is causally or etiologically related to active duty service, to include the Veteran’s conceded exposure to oil, smoke, and asbestos. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel