Citation Nr: 1808565	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  10-35 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease (COPD), as a residual to exposure to asbestos.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant-Veteran


ATTORNEY FOR THE BOARD

T. Matta, Counsel

INTRODUCTION

The Veteran served on active duty from February 1977 to February 1979.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In February 2013, in support of this and other claims that he also had appealed, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) of the Board.  A transcript of the proceeding is of record.

In March 2014, the Board issued a decision denying another claim the Veteran also had appealed - for service connection for bilateral hearing loss.  However, instead, the Board remanded his claims for a respiratory disorder (inclusive of COPD) and for obstructive sleep apnea because they needed to be further developed.

In December 2016, the Board issued a decision granting the Veteran's claim of entitlement to service connection for sleep apnea.  But, the Board also, again, instead remanded this respiratory disorder claim for still further development and consideration - including especially for a needed medical opinion.

A Supplemental Statement of the Case (SSOC), issued in September 2017, continued to deny this remaining claim, so it is again before the Board for further appellate consideration.

VA processed this appeal entirely electronically utilizing Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems, as is CaseFlow, the system the Board now employs to expedite the processing of appeals. Accordingly, all future consideration of this appeal must remain mindful of this electronic record.



FINDING OF FACT

A respiratory disorder, including COPD, was first diagnosed many years after the Veteran's military service, and the most probative (meaning most competent and credible) evidence indicates a respiratory disorder is not etiologically related to any disease, injury, or event during his service, including exposure to asbestos.


CONCLUSION OF LAW

The criteria are not met for entitlement to service connection for a respiratory disability, including COPD, since it is not shown this condition was incurred in or aggravated by the Veteran's service or that it may be presumed to have been.  38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).


The Board must assess the credibility and weight of all evidence, so both the lay and medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  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.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the appellant prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by way of a January 2009 letter apprising the Veteran of the type of evidence needed to substantiate this claim and of his and VA's respective responsibilities in obtaining this necessary supporting evidence.   See 38 U.S.C.  §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

And as concerning the additional obligation to assist in fully developing the evidence relevant to this claim, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been obtained and considered.  As well, pursuant to the Board's March 2014 remand directive, a VA compensation examination was performed in October 2014 for a medical nexus opinion needed to assist in determining the nature and etiology of the Veteran's respiratory disability, particularly in terms of whether it dates back to his service or, instead, is related or attributable to his 40-plus years of smoking.  Finding that opinion inadequate, the Board again remanded this claim in December 2016 for a supplemental (addendum) VA medical opinion.  The Board finds the more recent March 2017 VA examination and report adequate for deciding this appeal as the examiner expressed familiarity with the Veteran's pertinent medical and other history and the respiratory disability picture presented.  Perhaps most importantly, however, the examiner answered the questions asked regarding the posited relationship between the Veteran's respiratory disability and his service and provided explanatory rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).  In Neives-Rodriguez, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that most of the probative value of an opinion comes from the discussion of its underlying reasoning, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two."  Neives-Rodriguez, 22 Vet. App. at 301.  Moreover, because of the sufficiency of this opinion, there is no need to return it to the examiner for further comment, see 38 C.F.R. § 4.2, and there was compliance, certainly the acceptable substantial compliance, with this remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance).  But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

The Veteran has not identified any additional pertinent evidence that remains outstanding, so needing to be obtained.  VA's duty to assist therefore has been met.

Lastly, as concerning the Travel Board hearing, the presiding VLJ, the undersigned, complied with the due process requirements of 38 C.F.R. § 3.103(c).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  In Bryant, the Court held that § 3.103(c)(2) requires the hearing officer chairing a hearing to:  (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  Here, to this end, during the hearing the presiding VLJ clarified the issue and explained the basis of the prior determination denying this claim and discussed the elements of the claim that were lacking to substantiate entitlement to the claimed benefits.  In addition, the VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conduct of that hearing.  To the contrary, the hearing focused on the evidence needed to substantiate this claim.  Moreover, given the line of questioning and responses, the Veteran and his representative evidenced their actual knowledge of the type of information and evidence needed to substantiate this claim.  Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

Legal Criteria, Factual Background, and Analysis

Generally, to establish entitlement to service connection 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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection also may be granted for any injury or disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

If there is no manifestation of the claimed disorder within one year of service (there is this presumptive period for diseases that are considered chronic, per se), then service connection for a recognized chronic disease still can be established alternatively by showing continuity of symptomatology.  38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (2013).  Continuity of symptomatology requires that the chronic disease have manifested in service.  38 C.F.R. § 3.303(b). In-service manifestation means manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings.  Id.  

Service connection also may be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).  Generally, the disease must have manifested to a degree of 10 percent or more within one year of service.  38 C.F.R. § 3.307(a)(3).

COPD, however, is not recognized as a chronic disease according to § 3.303(b), nor is it encompassed by a broader-listed chronic disability.  38 C.F.R. § 3.309(a).  As COPD is not a recognized chronic disability, service connection based on either the presumption in favor of chronic diseases or continuity of symptomatology are inapplicable in this particular case.  Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements.  Id. at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  A negative inference, however, may be drawn from the absence of complaints or treatment for an extended period.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).

The Veteran claims that his COPD is the consequence of exposure to asbestos during his service.  Specifically, during his February 2013 hearing, he testified that he was diagnosed with COPD four and a half to five years earlier, so in 2008/2009 or thereabouts.  He believed at that time an emergency room (ER) doctor had suggested this diagnosis could be due to exposure to asbestos.  The Veteran argued he was exposed to asbestos during his service from living in barracks that were erected during World War II.  And while he does not believe exposure to asbestos solely caused his COPD, it nonetheless in his estimation expedited the onset of this disease and worsened the level of the problem over time.  See August 2010 VA Form 9, Substantive Appeal to the Board.  That said, he concedes he was a chronic smoker for over 40 years.

There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases.  However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims.  See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular have since been included in VA's Adjudication Procedure Manual, M21-1, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29 (July 20, 2009).  Also, an opinion by 
VA's Office of General Counsel discussed the development of asbestos claims.  See VAOPGCPREC 4-00.  VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The guidelines specify that asbestos fibers may produce fibrosis, including 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, Part IV.ii.2.C.9 (Dec. 13, 2005).  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.  Id. Some of the major occupations involving exposure to asbestos 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.  Id. 

The Board notes here that the Veteran's military occupational specialty in the United States Army was material supply man and military police.  The Board remanded these matters in March 2014 and December 2016 to develop any evidence of the Veteran's potential exposure to asbestos before, during, and after service (and to arrange for VA examinations, which are discussed below).  In an August 2017 VA memorandum, the Appeals Management Office concluded that, based on the Army Public Health investigations and the guidance set by M21-1.IV.ii.1.I.M21-1IV.ii.1.I.3.a, exposure to asbestos during service could not be conceded.

Here, review of the record shows the Veteran's service treatment records (STRs) include complaints of sinusitis and sinus trouble.  [A February 2014 rating decision denied service connection for sinusitis and that decision is a final and binding determination based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.]

Post service, during his September 2007 annual physical examination for employment, the Veteran was assessed as clinically normal and counseled to follow up annually with his primary care physician.  Also in September 2007, an X-ray of his posterioranterior (PA) and lateral chest was taken, which showed that he essentially had a normal chest.  It was noted that his lungs were clear and no pleural effusion or pneumothorax, but that he had a partial resection of the acromial end of the right clavicle.  He was again evaluated in August 2008.  The X-ray findings were the same as the September 2007 impressions.  Additionally, in August 2008, another chest X-ray including his oblique was ordered.  Noted in the clinical history was possible exposure to asbestos, hazardous materials, etc.  That X-ray showed there were no definite pleural or parenchymal changes suggestive of asbestos exposure seen, but there were significant artifacts on the images especially the oblique views making it difficult to exclude subtle abnormalities.  Although the conclusion reached found no acute abnormalities, significant linear vertical artifacts overlying the chest area on the oblique views were noted rendering the exam technically incomplete and necessary to repeat.  A few days later, the Veteran had an X-ray of his PA and lateral chest.  Comparing that X-ray with the previous X-ray of his oblique, the VA radiologist found that the heart size was stable and within normal limits; the Veteran's lungs were clear; only noted was the resection of the right distal clavicle.  The impression was there was no active disease.

An August 2008 VA ER Note documented that the Veteran used to smoke for 42 years and had quit because of his lung problems.  He was diagnosed and treated for COPD exacerbation.  

As already alluded to, the Board's March 2014 remand instructed the Agency of Original Jurisdiction (AOJ) to arrange for a VA examination to determine the nature and etiology of the Veteran's current respiratory impairment.  The examination was to include review of his relevant medical history and consideration of his complaints, as well as a comprehensive evaluation of his lungs and any diagnostic testing deemed necessary.  The examiner also was to consider the Veteran's documented history of chronic smoking.  At the conclusion of October 2014 VA examination, the examiner opined that, based on currently available medical records, the Veteran did not have an established diagnosis, or pulmonary function test (PFT) findings, of COPD or other chronic respiratory conditions and determined he was not exposed to asbestos during his service.

Because, however, the examiner did not account for the diagnosis of COPD in the Veteran's private and VA treatment records, the Board remanded this claim again in December 2016 for a more adequate opinion.  Following additional VA respiratory conditions examination in March 2017, the examiner diagnosed emphysema, so a type of COPD.  But as for etiology, he then opined that this claimed respiratory disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including exposure to asbestos.  In explanation, the examiner pointed out that he had failed to find any correlation linking the Veteran's chronic lung disease to his military service and did not find any records showing he was exposed to any harmful chemicals or asbestos.  This examiner then concluded, instead, that the cause of the Veteran's COPD is most likely due to the fact he smoked cigarettes for 43 years.  This examiner further indicated the Veteran does not have any residuals of asbestos exposure "as no evidence of asbestos exposure [is] found on radiographs/report[s] or in medical records."

That March 2017 opinion was based on review of the Veteran's history, including his STRs; the opinion addresses all of the critical medical issues in this claim regarding nexus and is entitled to significant probative weight.  Nieves-Rodriguez, 22 Vet. App. at 302-04; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Based on this VA examiner's opinion, the Board finds that the preponderance of the evidence is against granting service connection for a respiratory disability of any sort (COPD, emphysema specifically, etc.).  Precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of respiratory disorders such as COPD/emphysema.  See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997).  And indeed, as here, for claims filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking.  38 U.S.C. § 1103; 38 C.F.R. § 3.300.  Therefore, the Veteran may not be granted service connection for COPD/emphysema, as the VA examiner has determined it is due to the chronic smoking and has not otherwise associated it with the Veteran's military service.  Further, there is no other competent and credible medical opinion refuting this conclusion or otherwise relating the Veteran's respiratory disorder to his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").


In making this critical determination, the Board has considered the Veteran's lay statements and testimony in support of his claim and accepts that he is competent to report respiratory symptoms, such as difficulty breathing.  See Jandreau, supra; 38 C.F.R. § 3.159(a)(2).  However, he has not demonstrated the necessary knowledge or expertise to comment on the etiology of a diagnosed respiratory disorder, including especially COPD/emphysema, in relation to his active duty service, to include exposure to asbestos.  See 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); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  Here, notably, VA obtained a medical nexus opinion on this determinative issue of causation, and it is clearly unfavorable to the claim, not at all supportive of it. Moreover, as this opinion is by a medical doctor, reflects familiarity with the entire record, and includes rationale with citation to supporting factual data and medical literature, it is probative evidence in the matter.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (explaining that, to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, and instead, must also support the conclusion with sufficient rationale and explanation).  The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999).  "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions."  Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases" (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).  The opinion offered in this instance does not suffer from these failings.  Also, because there is no probative evidence to the contrary, the Board finds the opinions against the claim ultimately most persuasive.

To reiterate, 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.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Kahana cautioned that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  See again also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  But, again, attribution of the Veteran's respiratory disorder, however diagnosed, to his alleged exposure to asbestos (which has not been verified), is not the type of simple matter that is readily amenable to mere lay comment since it falls outside the realm or purview of the competence of this type of testimony.

A chronic (meaning permanent) lung disorder was not diagnosed during service or for many years thereafter.  No symptoms actually related or referable to the lungs have been identified in the medical record for continuity of symptomatology after the Veteran's discharge from service, even if this type of condition being claimed was subject to this relaxed evidentiary pleading, which, as explained, according to the holding in Walker, it is not.  The competent and credible medical evidence of record does not support finding that a respiratory disorder is related or attributable to his active duty service.  Instead, by all probative accounts, this disorder has been cited as a complication of his 40-plus years of smoking.  Therefore, the Board finds that the preponderance of the evidence is against his claim of entitlement to service connection for a respiratory disability.  Thus, the benefit-of-the-doubt doctrine does not apply.  As such, the evidence is insufficient to support a grant of service connection for this condition.  38 U.S.C. § 5107(b)38 C.F.R. § 3.102.



ORDER

Service connection for a respiratory disability, inclusive of COPD, is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs