Citation Nr: 19164257 Decision Date: 08/19/19 Archive Date: 08/19/19 DOCKET NO. 12-05 216 DATE: August 19, 2019 ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to asbestos. 3. Entitlement to service connection for a dental disorder. ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to asbestos is denied. REMANDED Entitlement to service connection for a dental disorder is remanded. FINDINGS OF FACT 1. The Veteran’s chronic obstructive pulmonary disease (COPD) is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran’s gastroesophageal reflux disease (GERD) is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. Chronic obstructive pulmonary disease (COPD), is not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303. 2. Gastroesophageal reflux disease (GERD) is not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from October 1963 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. In August 2012, at a Board videoconference hearing, the Veteran provided testimony relevant to the appeal from the RO in Nashville, Tennessee, before a Veterans Law Judge sitting in Washington, DC. A copy of the hearing transcript has been associated with the record. The Veterans Law Judge before whom the Veteran provided testimony in August 2012 has since retired. In September 2016, the Veteran was sent a letter to determine if he would like another hearing. The correspondence indicated that, if no response was received within 30 days, it would be assumed that the Veteran did not desire a new hearing. To date, no response has been received. In May 2017, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Duties to Notify and Assist 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) (2018). 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). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). 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. Further, a negative inference may be drawn from the absence of complaints 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). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v Brown, 4 Vet. App. 523 (1993), McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure M21 1,VBA Adjudication Procedure Manual M21 1, part IV, Subpart ii, Ch 2, Section C (November 4, 2016). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (b). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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 roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (d). The M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (g). Additionally, the Board should consider whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service, post-service, occupational, or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease. While the Veteran’s military personnel records do not demonstrate exposure to asbestos during service, the Veteran’s claims file includes a medical opinion from May 2019. In this opinion, a VA examiner concedes that the Veteran was likely exposed to asbestos. This has also been accepted by the RO, as shown in a June 2019 statement of the case. However, mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question in a claim such as this is whether disabling harm ensued as a result of any such asbestos exposure. The medical evidence must show not only a currently diagnosed disability, but also a nexus that is, a causal connection, between this current disability and the exposure to asbestos in service. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos. The Veteran is claiming that his COPD is due to his military service. Specifically, he contends that he was exposed to toxic asbestos while stationed on the U.S.S. Rankin. Military personnel records reflect the Veteran was stationed on the U.S.S. Rankin from approximately August 1966 through August 1967. Turning to the first criteria, the Veteran was seen for a VA examination in April 2014. The VA examiner had access to the Veteran’s claims file and conducted an in-person examination. The examiner confirmed a diagnosis of COPD. This diagnosis was later confirmed in a medical opinion from May 2019, whereby the physician conducted a review of the Veteran’s claims file and medical history. Thus, the Veteran has a current diagnosis of COPD, and has met the first criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). As stated above, the Veteran has met the second criteria for entitlement to service connection. His claimed in-service injury is exposure to harmful asbestos. While his military personnel records are silent as to asbestos exposure, that exposure has been conceded by a VA examiner as well as the RO. Furthermore, the Board considers the Board hearing in August 2012, whereby the Veteran testified to being surrounded by “two-foot lengths of sleeves of the fuzzy blue asbestos,” aboard the U.S.S. Rankin, and having to breath in the substance in small spaces, “with no mask on.” In consideration of the above, the Board echoes the determination of the VA examiner and the RO, insofar as exposure to asbestos is consistent with the circumstances of his military personnel records and service. Thus, the second criteria for entitlement to service connection has been met. 38 C.F.R. § § 3.303(a). Turning to the third criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The Veteran was seen for a VA examination in April 2014. The examiner conducted an in-person examination and had access to the Veteran’s claims file. The examiner took a history of the Veteran’s diagnosed COPD, including his original diagnosis of a respiratory condition in approximately 2006. The examiner noted that the Veteran “is a long-time smoker,” and lives at home with a wood burning stove and poor indoor air circulation. The examiner further noted that the Veteran “is also still smoking home-rolled cigarettes that don’t have a filter,” and that suggestions to stop smoking were “all refused by the Veteran.” The VA examiner opined that the Veteran’s COPD was less likely than not due to his military service. Specifically, the examiner stated, “the Veteran’s COPD … are more likely than not secondary to his very long history of cigarette smoking.” The examiner further stated that he was unclear if the Veteran had ever been exposed to agent orange in service, yet regardless, “his COPD … would not be considered to be related to agent orange, but to cigarette smoking.” While it is unclear why the VA examiner provided an additional opinion regarding agent orange exposure, the examiner still opined that the Veteran’s COPD was not related to service. The Board also recognizes that this opinion, while direct and adequate, does not fully explore the theory set forth by the Veteran – that his COPD is due to exposure to asbestos while in service. Therefore, the Board can only afford the April 2014 examination some probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Since the April 2014 VA examination lacked an opinion regarding asbestos exposure, the Board remanded the decision in May 2017 for a medical addendum opinion. In compliance with that Board Remand, an addendum opinion was received in May 2019. As mentioned above, that opinion was given from a physician who conducted a review of the Veteran’s claims file and medical history. The opinion stated the following: It is less likely that the Veteran has asbestosis related to asbestos exposure in the service. Based on review of CT scan findings, there is no evidence of interstitial lung disease or interstitial pulmonary fibrosis which are the expected findings in asbestosis. Therefore, there is no evidence that the asbestos exposure in the service has caused lung damage and no evidence of asbestosis on the CT scan. It is more likely that the obstructive defect on PFT (COPD) is due to smoking and less likely due to asbestos exposure. The most important risk factor for chronic obstructive pulmonary disease (COPD) is cigarette smoking. As mentioned there is no evidence on CT scan that asbestos exposure in the service has caused lung damage. Asbestos exposure is not known in itself to cause obstructive disease. Thus, the opinion provided denied the nexus between the Veteran’s in-service exposure to asbestos, and his current COPD. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that the Veteran’s COPD is not due to service, to include his exposure to asbestos. While the April 2014 opinion is only provided some probative weight, it still concluded that the Veteran’s COPD was not due to service generally. Furthermore, the May 2019 addendum opinion confirmed that opinion, and went further to disprove the nexus between the Veteran’s COPD and his exposure to asbestos. Finally, the Board is cognizant of additional factors, such as the Veteran being a lifelong smoker of unfiltered cigarettes, and the significant gap in time between the Veteran’s separation from service in 1976 and his diagnosis, around 2006. Therefore, the Board finds that the Veteran has not satisfied the third criteria for service connection. Thus, entitlement to service connection for COPD, to include as due to exposure to asbestos, is not warranted. In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to exposure to asbestos. The Board incorporates its discussion from the sections above by reference. Similar to his claim for COPD, the Veteran is claiming that his GERD is due to his military service, and more specifically, that it is due to his exposure to toxic asbestos while stationed on the U.S.S. Rankin. Turning to the first criteria for entitlement to service connection, the Veteran’s claims file includes a VA examination from April 2014, whereby the Veteran’s diagnosis of GERD was confirmed. Medical correspondence from December 2015, as well as from January 2016, also indicate that the Veteran has a current diagnosis of GERD. Thus, the Veteran has a current diagnosis, and has met the first criteria. Furthermore, as noted in the preceding section for COPD, the Veteran’s in-service exposure to asbestos has been conceded by the Board. Thus, he has also met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the third criteria, the Veteran was seen for a VA examination in April 2014. The VA examiner had access to the Veteran’s claims file and conducted an in-person examination. The examiner confirmed the diagnosis of GERD and admitted that the exact date of the diagnosis was unclear, yet thought it “may be in 2006 when [the Veteran] was seen by ENT for vocal cord issues or by GI who saw him for IBS symptoms around that time.” The VA examiner provided the following opinion Review of the STR, c-file and CPRS notes shows no evidence of … GERD … in the military or a relationship of the Veteran’s military service and his … GERD … his GERD, which is fairly recent in its development, is related to developing laxity in the lower esophageal sphincter allowing gastric contends/acid to come back into the esophagus/throat. Smoking can cause laxity in that sphincter, but sometimes the reason GERD develops is not known and sometimes it is secondary to other lifestyle factors. Thus, the VA examiner did not opine as to whether or not the Veteran’s GERD was related to service yet did believe it to be possibly linked to smoking, or “secondary to other lifestyle factors.” Regardless, a clear opinion, much less an opinion related to his exposure to asbestos, was not reached. Thus, the Board affords this opinion little probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As mentioned above, an addendum opinion as obtained in May 2019. After reviewing the Veteran’s medical history and claims file, the physician writing the addendum opinion provided the following: It is less likely that GERD is related to asbestos exposure. Examiner is not aware of medical literature supporting such a link. Medical literature review shows that risk factors for GERD include smoking and hiatal hernia which likely contributed to development of GERD in this case. Regarding onset of GERD in relation to service, examiner cannot state that GERD was incurred during active duty without resorting to speculation as the medical evidence is not sufficient to establish that. There was one reference to upset stomach and treatment with Maalox in the service records but RFAD exam was negative for chronic disabilities and later records including Veteran’s statement indicated onset of GI problems much later. Thus, the May 2019 opinion denied that the Veteran’s GERD was related to asbestos exposure. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the Veteran’s GERD is not due to service, to include his exposure to asbestos. While the April 2014 opinion is only entitled to little probative weight, the conclusion still generally links the Veteran’s GERD to smoking and other lifestyle factors, not his service. The May 2019 opinion, which the Board has afforded significant probative weight, denies that GERD is related to service, to include his exposure to asbestos. In fact, the May 2019 opinion states that one of the risk factors contributing to GERD may be smoking, which is one of the additional factors that the Board considered in the preceding section denying service connection for COPD, coupled with the significant time gap between service and the onset of GERD symptoms. Therefore, the Board finds that the Veteran has not satisfied the third criteria for service connection. Thus, entitlement to service connection for GERD, to include as due to exposure to asbestos, is not warranted. In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a dental disorder. The Board incorporates its discussion from the sections above by reference. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. The Veteran contends that a dental disorder is due to service, or in the alternative, secondary to the currently diagnosed GERD. A March 2012 statement reflects that the Veteran wrote that four wisdom teeth were forcefully extracted, two while in boot camp and the other two while on his first duty assignment, causing the currently diagnosed periodontal disease. The Veteran also indicated that the current dental disorder is secondary to the currently diagnosed GERD. As noted, the Veteran testified before a Veteran’s Law Judge in August 2012 regarding his dental disorder. The Veteran pointed to a specific event in service where his teeth were extracted. Specifically, he testified “when he was finished and my mouth was packed, he removed like 13 teeth. Bone, mandibular bone up and down … the Navy prevents pockets for a reason … when I went to boot camp I had a healthy mouth.” An August 2003 VA treatment record reflects the Veteran reported a long history of dental problems beginning in 1964 during service when teeth were removed for “no reason.” The August 2003 VA examiner assessed that the remaining teeth were numbers 6, 9, 10, 11, 12, 20, 21, 22, 23, 26, 27, 28, and 29. The August 2003 VA examiner noted chronic and severe periodontal disease. An April 2005 private treatment record reflects that the private examiner assessed that the following teeth were missing: numbers 1, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 24, 25, 30, 31, and 32. The April 2005 private examiner diagnosed advanced periodontal disease (stage III). In the Board Remand from May 2017, it was highlighted that a May 2014 VA examination report reflects that the VA examiner did not review the record and noted that the Veteran had not been diagnosed with an oral or dental condition. The May 2017 Remand thus determined that the May 2014 VA examiner’s opinion appeared to be based on an inaccurate premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Thus, the only examination to opine as to a potential etiology of the Veteran’s dental disorder was deemed inadequate. Therefore, the Board remanded the matter for additional evidentiary development. The Remand directives were, in part, so that the Veteran could receive the required VA examinations to develop his claims of entitlement to service connection. While two of the VA examinations took place in May 2019, the third VA examination did not. The missed examination was to help determine the etiology of the Veteran’s current dental disorder. Correspondence in the Veteran’s claims file from May 2019 indicates that the VA examination as scheduled, however it was never confirmed by the Veteran. The Veteran’s file also includes correspondence from July 2019, indicating that the VA examination for his dental disorder was cancelled as the RO was “unable to contact Veteran.” The Board acknowledges that, under applicable law, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based on the evidence of record. 38 C.F.R. § 3.655 (b). In this case, however, a review of the record indicates that the Veteran may have not been correctly contacted to confirm his upcoming VA examination. In light of this evidence, it is questionable whether the Veteran received notice of the scheduled examination for his dental disorder. The Board also notes that, while the Veteran had attended the other scheduled VA examinations, the VA examination for his dental disorder was scheduled for a different date. Accordingly, affording the Veteran the benefit of the doubt, the Board is unable to presume that the Veteran was properly notified of the upcoming examination so as to permit the application of 38 C.F.R. § 3.655 (b). See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo VA examinations in connection with his appeal. Thereafter, the RO should schedule the Veteran for the appropriate VA examination, and should also make appropriate efforts to contact and confirm the appointment with the Veteran. Such efforts to contact the Veteran should be documented. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. Additionally, the Board recognizes that the Veteran’s claim of entitlement to service connection for a dental disorder is, in part, based on the theory of secondary service connection to GERD. Since the criteria for entitlement to service connection on a secondary basis requires GERD to be a service-connected disability, and since entitlement to service connection for GERD is denied herein, the examiner is not required to offer an opinion as to whether or not the Veteran’s dental disorder is either proximately due to or the result of GERD or aggravated beyond its natural progress by GERD. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. Schedule the appropriate VA examination in order to assist in determining the nature and etiology of the dental disorder. The relevant documents from the record should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. An interview of the Veteran regarding the history, a physical examination, and all tests and studies required to respond to the following questions should be performed. Based on review of the appropriate records, the examiner should offer opinions on the following questions: (a.) Is it as likely as not (i.e., probability of 50 percent or more) that the currently diagnosed periodontal disease was incurred in or caused by active service? What is the most likely etiology of each current dental disorder? In rendering the opinion, the VA examiner should address the Veteran’s contentions that symptoms began in service. Please explain the basis for all opinions. The term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as to find against causation or aggravation. 3. Then readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and Representative should be provided a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.