Citation Nr: 18140818 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-24 245 DATE: October 5, 2018 ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for asbestosis. ORDER Entitlement to service connection for COPD is denied. Entitlement to service connection for asbestosis is denied. FINDINGS OF FACT 1. COPD was not shown in service or for many years thereafter, and has not been shown to be related to service. 2. The probative medical evidence of record shows that the Veteran does not have asbestosis. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303(2017). 2. The criteria for service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to November 1969. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. A videoconference hearing was held before the undersigned in July 2018. A transcript of the hearing has been associated with the record. During this hearing, the record was held open for 60 days to allow for the submission of evidence; however, no additional evidence was submitted. Service Connection Claim The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). To establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran’s COPD is not a “chronic disease” listed under 38 C.F.R. § 3.309 (a) (2017); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303 (b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, (VBA Manual M21-1), IV.ii.2.C, provides information concerning claims for service connection for disabilities resulting asbestos exposure. The United States Court of Appeals for Veterans Claims (Court) has 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). VBA Manual M21-1 defines “asbestos” as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. VBA Manual M21-1, IV.ii.2.C.2.a. Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques (scars of the lining that surrounds the lungs), mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. VBA Manual M21-1, IV.ii.2.C.2.b. 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. Note: Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. VBA Manual M21-1, IV.ii.2.C.2.d. Many people with asbestos-related diseases have only recently come to medical attention because 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. VBA Manual M21-1, IV.ii.2.C.2.f. The Veteran asserts that he has COPD and asbestosis as a result of exposure to asbestos aboard several Navy ships in service. COPD In this case, VA examination and treatment records show diagnoses of COPD. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, the Veteran testified before the undersigned that while in service he worked onboard five different vessels of the destroyer class, all World War II or early 1950's vintage, and “full of asbestos”. He also testified that he worked in four shipyards removing asbestos before protective clothing and breathing apparatus were readily provided. The Veteran’s DD Form 214 shows that his last duty assignment and major command was aboard the USS John Willis (DE 1027) while in active service. Online research conducted by the Board shows that the USS John Willis was commissioned in the 1950's. It is well known that the ships built in that time contained asbestos. Therefore, the Board concedes the Veteran's exposure to asbestos while he was in active service. Accordingly, Hickson element (2) is met. The Veteran was afforded a VA examination in February 2015 in which the examiner opined that the condition claimed 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 stated that the Veteran had COPD related to his years of tobacco abuse; medical record documented a history of smoking from age 16 approximately to 1990 approximately with a history of one and a half to two packs per day over this 30-year span. The examiner stated that the Veteran never had a diagnosis of asbestosis and had no pulmonary evidence of asbestosis in all of his respiratory evaluations. In this case, as to the issue of the etiology of the Veteran’s COPD, the Board finds that the February 2015 VA examination report to be the most probative evidence of record as it was based upon a review of the claims file, examination and interview of the Veteran, and opinion with rationale was provided. The Board finds that the VA examiner made it clear that it was her opinion that COPD was not related to service. To this point, the Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Accordingly, the Board concludes that the VA opinion carries significant weight. No other competent opinion providing a positive nexus between service and the Veteran’s COPD has been presented. Asbestosis Regarding the claim for asbestosis, the evidence of record does not show a current diagnosis. Asbestosis has also not been shown. Accordingly, Hickson element (1) is not met for this claim, and the claim must be denied. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his COPD is related to service and that he has asbestosis. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his COPD or diagnosis asbestosis, as such are not readily subject to lay observation. Therefore, the Veteran’s claim that his COPD was etiologically related to service and that he has asbestosis are outweighed by the competent and probative medical opinion. See Barr, 21 Vet. App. 303; Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the VA examiner’s opinions are competent and probative as they were rendered after an evaluation of the Veteran, review of the Veteran’s history, and consideration of medical principles by licensed medical professionals. Therefore, a nexus between service and the Veteran’s COPD cannot be established, and the criteria of Hickson element (3) are not met for that claim. A diagnosis of asbestosis cannot be established, and the criteria of Hickson element (1) are not met for that claim. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel