Citation Nr: 1828082 Decision Date: 05/07/18 Archive Date: 05/18/18 DOCKET NO. 16-25 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for adenocarcinoma of the right lung, including as due to asbestos exposure. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as due to asbestos exposure. 3. Entitlement to service connection for emphysema, including as due to asbestos exposure. REPRESENTATION Appellant represented by: Joseph Bochicchio, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service in the U.S. Navy from January 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. On the May 2016 VA Form 9, the Veteran requested a Board hearing; however, in August 2017, the Veteran withdrew the hearing request and asked to proceed with the appeal. 38 C.F.R. § 20.704(e) (2017). In October 2017, the Board referred the case to the Veterans Health Administration (VHA) for a medical expert opinion to address certain medical questions pertaining to the issues on appeal. In November 2017, a medical opinion from a VA pulmonologist was obtained, and a copy of the medical opinion was provided to the Veteran. 38 C.F.R. § 20.901 (2017) (the Board has the authority to obtain a VHA medical expert opinion when, in its judgment, such medical expertise is needed for an equitable disposition of an appeal). Due to the Veteran's advanced age, this appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. The Veteran was exposed to asbestos and was treated for upper respiratory illnesses during service. 2. Lung cancer, which was manifested many years after service, was at least partly causally related to asbestos exposure during service. 3. The current COPD, including emphysema, was first manifested many years after service, and is not causally or etiologically related to service, to include in-service exposure to asbestos. 4. COPD, including emphysema, is attributable to a history of smoking tobacco. 5. Service connection is precluded for disability due to the use of tobacco products during active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for adenocarcinoma of the right lung are met. 38 U.S.C. §§ 1103, 1110, 1112, 1131, 1137, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.300, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1103, 1110, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.300, 3.303 (2017). 3. The criteria for service connection for emphysema are not met. 38 U.S.C. §§ 1103, 1110, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.300, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The U.S. Court of Appeals for Veterans Claims (Court or CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the February 2013 and September 2013 notice letters sent prior to the initial denial of the claims, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claims, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The complete service treatment records are included in the record, and post-service treatment records identified as relevant to the appeal have been obtained or otherwise submitted. The RO provided a VA examination in February 2016, and the Board obtained a VHA advisory medical opinion in November 2017. The February 2016 VA examiner and November 2017 VA reviewer considered an accurate history as provided through review of the record. The February 2016 VA examiner also interviewed the Veteran and performed a thorough examination. In consideration of the foregoing, the Board finds that the VA examination report and collective VA medical opinions are adequate, and there is no need for further VA examination or medical opinion. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed, and no further development is required. Service Connection Legal Criteria The Veteran contends that the current emphysema, COPD, and lung cancer were caused by exposure to asbestos during service. He seeks service connection on this basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed adenocarcinoma (i.e., cancer) of the right lung, COPD, and emphysema. COPD is an umbrella term that encompasses emphysema. Cancer, as a malignant tumor, is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). COPD and emphysema are not "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable to those diagnoses. Walker, 708 F.3d 1331. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as a malignant tumor (i.e., cancer), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 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 which 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 were later included in the VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (M21-1). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000. The aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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. As to occupational exposure, exposure to asbestos has been shown in manufacturing and servicing of friction products such as clutch facings and brake linings, and other occupations. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also, of significance, is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21(b). The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service, and 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. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 2-88-8, Asbestos-Related Diseases (May 11, 1988). Service Connection Analysis for Lung Cancer After review of all the lay and medical evidence of record, the Board finds that the Veteran was exposed to asbestos (i.e., there was a respiratory "injury") during service. The DD Form 214 and service personnel records show that the Veteran served as a Navy ship's serviceman, which is a military occupational specialty with no more than minimal asbestos exposure. The Veteran has competently reported that, while aboard the Navy ship, he slept near ventilation pipes covered in asbestos, and there is no indication in the record that the lay account is not credible. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to some asbestos during naval service. The Board next finds that the evidence is in equipoise on the question of whether the later developed lung cancer is causally related to asbestos exposure during service. Although lung cancer was first shown in 2006 (i.e., 47 years after service), the November 2017 VA reviewer opined that the lung cancer may be due to both in-service asbestos exposure and (nonservice-connected) long-term smoking. See November 2017 VHA advisory medical opinion. In support of the medical opinion, the November 2017 VA reviewer noted that lung cancer was strongly related to long-term smoking, and the Veteran had a long smoking history. The November 2017 VA reviewer also wrote that asbestos exposure had some association with lung cancer and increased the risk of lung cancer in smokers, and the Veteran had some exposure to asbestos during service. The November 2017 VA reviewer had specialized medical expertise in pulmonary disorders, had adequate facts and data on which to base the medical opinion, and provided sound rationale for the medical opinion. Although the November 2017 VA reviewer used speculative language (i.e., may be) when providing the medical opinion, the November 2017 VA reviewer also cited known medical principles regarding the relationship between lung cancer and asbestos exposure and discussed the Veteran's history of asbestos exposure during service when providing rationale for the medical opinion, so when viewed in the context of the rationale provided, the November 2017 VHA advisory medical opinion is sufficiently definitive to establish a nexus relationship between lung cancer and service. For these reasons, the Board finds that the November 2017 VHA advisory medical opinion is of significant probative value. In consideration of the foregoing, the Board finds that the evidence both for and against the question of whether the Veteran has the current lung cancer was related to asbestos exposure during active service is in relative equipoise. In consideration thereof, and resolving reasonable doubt in the Veteran's favor, the Board finds that direct service connection under 38 C.F.R. § 3.303(d) for adenocarcinoma of the right lung is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because direct service connection is being granted for adenocarcinoma of the right lung for reasons explained above, there is no need to discuss whether presumptive service connection for adenocarcinoma of the right lung under 38 C.F.R. § 3.303 (b) based on chronic symptoms during service or continuous symptoms since service is warranted. Service Connection Analysis for COPD and Emphysema After review of all the lay and medical evidence of record, the Board finds that the Veteran was exposed to asbestos (i.e., there was a respiratory "injury") during service. For reasons previously explained, the Board finds that the Veteran was exposed to some asbestos during naval service. The Board also finds that the Veteran was treated for respiratory symptoms at various times throughout service. The service treatment records, which are complete, show treatment for respiratory illness at various times throughout service. From March 1955 to August 1958, the Veteran received treatment for colds, cough with chest pain at times, sore throat, acute pharyngitis, and recurrent tonsillitis. The Board next finds that the weight of the evidence is against a finding that COPD was manifested during service, to include symptoms related thereto, or is related to the in-service asbestos exposure. The service treatment records, which are complete, are absent of any complaints of, findings of, or treatment for a respiratory disease during service, including COPD or emphysema. At the January 1959 service separation examination, the lungs and chest were clinically evaluated as normal, and the chest x-ray was within normal limits. Because various respiratory illnesses were treated throughout service, and the lungs and chest were evaluated at the time of service separation, the Board finds that COPD, including emphysema, is a condition that would have ordinarily been recorded during service, if it had been present; therefore, the service treatment records, which were generated contemporaneous to service and are likely to reflect accurately the Veteran's physical condition, and are complete, are of significant probative value and provide evidence against a finding of COPD symptoms, including emphysema, during service. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Board further finds that the weight of the evidence is against finding that COPD, including emphysema, which was first manifested many years after service separation, is otherwise causally or etiologically related to service. The earliest evidence of COPD and emphysema in the record is shown in 2006, 47 years after service separation. Considered together with the absence of COPD, including emphysema, during service, the 47-year gap between diagnosis of COPD and emphysema and service, and medical evidence relating the COPD including emphysema to non-service-related smoking, is one additional factor that weighs against a finding of service incurrence. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). In the November 2017 VHA advisory medical opinion, the VA reviewer opined that COPD and emphysema were less likely than not (less than 50 percent probability) caused by service, including respiratory symptoms or asbestos exposure therein. In support of the medical opinion, the November 2017 VA reviewer explained that COPD was a chronic lung disease that basically refers to a combination of emphysema and chronic bronchitis (and emphysema was a part of COPD) was caused by smoking or inhalation of noxious gases for a long-time period. The November 2017 VA reviewer noted that the Veteran had upper respiratory tract infections during service but such infections did not cause COPD or emphysema and asbestos exposure did not cause COPD or emphysema. Because the November 2017 VA reviewer had specialized medical expertise in pulmonary disorders, had adequate facts and data on which to base the medical opinion, and provided sound rationale for the medical opinion, the Board finds that the November 2017 VHA advisory medical opinion is of significant probative value. In the undated private medical opinion received in February 2017, a private physician purported to opine that it was more likely than not that exposure to asbestos while serving in the Navy could have caused COPD and emphysema; however, the private physician used speculative terminology (i.e., "could") when providing the medical opinion, and provided no rationale for the medical opinion. For these reasons, the February 2017 private statement is of no probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). To the extent that the Veteran's tobacco smoking is contended to have begun during service, such assertion actually weighs against the claim for service connection because, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110, 1131. The Veteran filed the current claim in 2012; therefore, this assertion of in-service onset of smoking is against the claim for service connection as it suggests a nonservice-related etiology (prohibited as a matter of law and policy) for COPD, including emphysema. Although the Veteran has asserted that COPD, including emphysema, is causally related to service, he is a lay person and does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of his COPD. The etiology of the Veteran's COPD is a complex medical etiological question dealing with the origin and progression of the respiratory system, and COPD is a disorder diagnosed primarily on clinical findings and physiological testing. Thus, while the Veteran is competent to relate respiratory symptoms that he experienced at any time, he is not competent to opine on whether there is a link between COPD, symptoms of which were manifested many years after service, and active service, including asbestos exposure or respiratory symptoms during service, because such a medical opinion requires specific medical knowledge and training. For these reasons, the Veteran's unsupported lay opinion is of no probative value. The Board notes that the Veteran has submitted copies of a prior Board decision granting service connection for COPD due to asbestos exposure in another case, but the decision carries no precedential value both because generally the Board is not bound by any prior Board decision not involving this Veteran, and specifically the basis and evidence relied upon in that case are substantially different from the evidence in the present case. Thus, the weight of the evidence is against a finding that COPD, including emphysema, was caused by or related to active service. In consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the service connection appeals for COPD and emphysema and, consequently, the appeals must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for adenocarcinoma of the right lung due to asbestos exposure is granted. Service connection for COPD, including as due to asbestos exposure, is denied. Service connection for emphysema, including as due to asbestos exposure, is denied. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs