Decision Date: 07/31/95 Archive Date: 08/03/95 DOCKET NO. 93-14 420 ) DATE ) ) On appeal from the decision of the Regional Office in North San Diego, California THE ISSUES 1. Entitlement to service connection for lung disease due to asbestos exposure during service. 2. Entitlement to service connection for a heart disorder as secondary to asbestos-related lung disease. 3. Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Balbach, Associate Counsel INTRODUCTION The appellant had active military service from December 1934 to December 1940 and from January 1941 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 6, 1992, rating decision of the Department of Veterans Affairs (VA) North San Diego, California, Regional Office (RO), which denied a claim of entitlement to service connection for lung disease secondary to asbestos exposure, and entitlement to service connection for an enlarged right heart condition as secondary to lung disease and also as having developed during service. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was exposed to asbestos while serving in the Navy from 1934 until his retirement in 1961. The appellant states that he worked as a machinist in the boiler and engine rooms on ships during service, and that some of his duties included tearing off lagging from pipes, cleaning steam drums on boilers, and overhauling equipment. He contends that he has developed lung disease as a result of his exposure to asbestos during service, and that his breathing difficulty is the direct cause of his enlarged right heart condition. Furthermore, the appellant claims, through his representative, that his enlarged right heart disorder was incurred during service and that he is entitled to service connection for an enlarged right heart disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence does not support the veteran's claim for service connection for lung disease due to asbestos exposure. Furthermore, the Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file with regard to the appellant's claim for entitlement to service connection for a heart disorder secondary to asbestos-related lung disease. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has failed to allege a claim of legal merit upon which any entitlement under the law may be granted, and the claim is denied. Moreover, after a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for a cardiovascular disorder as incurred during service. FINDINGS OF FACT 1. Restrictive lung disease, first manifested several years after the appellant's retirement from service, is not related to service, nor is this disorder due to any occurrence or event in service. 2. Service connection is not in effect for a lung disease. 3. "Hypertension" noted in the service medical records in October 1948, was not supported by any abnormal clinical findings, and subsequent service medical records are negative for any indications of hypertension. 4. Right ventricular enlargement and pulmonary hypertension were first manifested many years after the veteran's retirement from service and are not causally related to any incident of service. CONCLUSIONS OF LAW 1. A lung disease was not incurred or aggravated in service. 38 U.S.C.A. § § 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d), (1994). 2. The claim to entitlement to service connection for a heart disorder claimed as secondary to lung disease is not a claim for which relief or entitlement may be granted. 38 U.S.C.A. § 7105(d)(5) (West 1991); 38 C.F.R. § 3.310(a) (1994 3. A cardiovascular disorder was not incurred in service, and may not be presumed to have been so incurred. 38 U.S.C.A. § § 1101, 1110,1112, 1113, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Asbestos-Related Lung Disease The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A private physician has related the veteran's lung disease to exposure to asbestos during service. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. (38 U.S.C.A. § 1110, 1131 (West 1991). Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1994). Service administrative records indicate the veteran was a machinist throughout most of his 26 years of active service. Service medical records showed no complaint or finding of any lung disease, and at the appellant's November 1960 retirement medical examination, clinical evaluation of the lungs and a chest x-ray revealed normal findings. A November 1972 VA medical examination revealed breathing to be somewhat labored on slight exertion. There were no rales, and a chest x-ray was normal. Records of the veteran's treatment at a Kaiser Permanente facility in 1990 and 1991 include a January 1990 chest X- ray, taken to rule out pneumonia, which showed no significant abnormality. A consultation by E. Macy, M.D., in February 1990 noted a long-term history of mild shortness of breath which had recently been worsening, to the extent where he had significant dyspnea when descending two flights of stairs. He had worked as a machinist in the Navy a number of years earlier, and there was a question of asbestos exposure at that time. He had been primarily involved in working on optical instruments which was noted to be a relatively clean profession. Since then, he had had a desk job and was currently retired. The chest was completely clear on examination. Pulmonary function tests in March 1990 confirmed pulmonary restriction. A pulmonary clinic note in April 1990 described the veteran as having new onset restrictive lung disease over the past two years, found on recent pulmonary function tests. The veteran reported a history of asbestos exposure during his 26 years of military service from 1935 to the 1960's consisting of work in the engine and fire rooms, cleaning boilers, occasionally removing the asbestos insulation from steam lines, and replacing lagging. It was reported that pulmonary function tests in 1984 had been normal. A consultation with W. Sperling, M.D., dated in June 1990 noted a history of extensive asbestos exposure, with current progressive shortness of breath, and with pulmonary function tests showing restriction without obstruction and mild chronic productive cough. The assessment suspected was progressive interstitial lung disease secondary to asbestos exposure. A Gallium scan in June 1990 noted fairly diffuse activity compatible with active interstitial changes. In July 1990, the veteran underwent fiberoptic bronchoscopy, which revealed prominent longitudinal infolding and chronic inflammatory changes on the mucosa of the bronchus. Several biopsies were taken from the left lower lobe. The results of the biopsies did not show fibrosis or malignancy, and cytology was negative. In September 1990, it was noted that the veteran was to be worked up for possible underlying disorder in addition to the possible asbestos lung. Chest X-ray in September 1990 showed bilateral pleural thickening with no acute infiltrate. A lung scan demonstrated a low probability of pulmonary emboli, and also showed obstructive lung disease. Subsequent records show his continued follow- up for interstitial lung disease, with pleural thickening again shown on X-ray in April 1991. The veteran underwent a VA pulmonary examination in January 1992. A history of progressive shortness of breath over the past two to three years was reported, as was a history of considerable asbestos exposure during his 26 years in the Navy. The current symptoms and findings were noted to be consistent with moderate pulmonary fibrosis; however, the claims folder was not available for review, and so important information such as pulmonary function tests, chest x-rays, and biopsy reports were not available. Pulmonary function tests were performed by Dr. Sperling in May 1992. The tests showed no significant expiratory obstruction and mild restrictive disease. A VA medical examination was conducted in July 1992. The veteran reported a history of asbestos exposure while working as a machinist in the Navy. He also reported that his chest x-ray has never shown specific evidence of asbestosis. Pulmonary function tests performed at the VA facility revealed either mild obstructive or restrictive disease or a variant of normal. A chest X-ray of July 17, 1992, revealed a mild prominence of the bronchial walls. No plaques or interstitial lung disease suggestive of either asbestos exposure or asbestosis were identified. The examiner physically examined the veteran, and reviewed the claims folder. He diagnosed restrictive lung disease secondary to interstitial fibrosis of unknown etiology. He further concluded that it is not medically probable that the veteran's pulmonary fibrosis is secondary to asbestos, and his pulmonary fibrosis appeared to be idiopathic. In evaluating the veteran's claim, it must be determined whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The evidence in the veteran's favor consists of his credible statements of asbestos exposure, records from his private physician diagnosing interstitial lung disease with a possible relationship to asbestos exposure, and medical evidence of restrictive lung disease. The evidence against the veteran consists of the July 1992 VA examination report which concluded that the veteran did not have asbestos-related lung disease. In addition, the biopsy results in July 1990 that did not show fibrosis or malignancy and a cytology that was negative are evidence against the veteran's claim. Although there was a suspicion of asbestos-related lung disease, subsequent tests were negative for clinical criteria indicative of asbestosis. Asbestosis is typically manifested many years after the exposure; the latent period varies from 10 to 45 or more years between first exposure and the development of the disease. VA Adjudication Procedure Manual, M21-1, Part VI, 7.68(b)(2) (Change 3, Sept. 21, 1992) (Hereinafter, M21-1). The veteran was discharged from service in 1961, nearly 30 years prior to the diagnosis of interstitial lung disease. The clinical diagnosis of asbestosis requires a history of exposure as well as radiographic evidence of parenchymal lung disease. M21-1, 7.69(c). The radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, or pleural plaques. M21-1, 7.68(a). The private laboratory tests and X-ray reports as well as the VA examination laboratory tests and X-ray reports do not show any of these abnormalities characteristic of asbestos exposure. Although he has interstitial lung disease, according to his private physician, the numerous VA studies of record have failed to show fibrosis or pleural plaques. Inasmuch as the record does not show findings pathognomonic of asbestos exposure, the preponderance of the evidence is against the claim of service connection for a lung disease related to asbestos exposure. Heart Disorder Secondary to Asbestos-Related Lung Disease The veteran claims that he developed a heart disorder as a result of his lung disease. He contends that he has breathing problems due to lung disease, and that the difficulty breathing caused his heart to become enlarged. He requests that his heart disorder be service connected because it is causally related to lung disease. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The appellant contends that an enlarged right heart disorder is the result of an asbestos-related lung disease. As discussed above, the appellant is not entitled to service connection for an asbestos-related lung disease. Because service connection is not in effect for lung disease, a claim predicated upon such service connection has no legal merit, regardless of whether the medical evidence shows causality between the two disorders. The United States Court of Veterans Appeals (Court) has held that in a case such as this one, "where the law and not the evidence is dispositive, the claim should be denied or the appeal to the (Board) terminated because of the absence of legal merit or the lack of entitlement under the law. Cf. FED. R. CIV. P. 12(b)(6) ('failure to state a claim upon which relief can be granted')" Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). In the absence of a service-connected lung disorder, the veteran's claim of entitlement to service connection for a heart disability as secondary to a lung disorder must be denied. Heart Disorder The Board notes that the service medical records show a diagnosis of hypertension, and pulmonary hypertension is currently shown. Thus, the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by service. (38 U.S.C.A. § 1110 1131(West 1991) Regulations also provide that service connection may be established where all the evidence of record, including that pertinent to service, demonstrates that the veteran's current disability was incurred in service. 38 C.F.R. § 3.303(d) (1994). Additionally, where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, and cardiovascular disease, including hypertension, becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service medical records do not show the presence of a cardiovascular disorder during service. Annual examinations in 1946 and 1947 showed normal findings. On a routine annual examination in October 1948, it was noted that the veteran was found to be physically qualified to perform all duties. A chest x-ray was negative, and the examiner reported that an electrocardiogram was not necessary. However, "hypertension NCD (not considered disqualifying)" was noted. No blood pressure readings taken at this time were recorded, and there are no clinical findings of record supporting the notation of hypertension. The annual physical examination conducted in November 1949 did not indicate hypertension. No clinical findings of abnormal blood pressure are evidenced in the service medical records.. Electrocardiograms performed in August 1958 and subsequently were normal. Blood pressure readings at separation were 114/74, 110/68, 110/82 Subsequent to service, a VA examination in 1972 showed no abnormalities regarding the veteran's heart. Blood pressure was 116/76. Private medical records from Kaiser Permanente dated November 1990 do, however, indicate pulmonary hypertension. An echocardiogram showed right ventricle enlargement and pulmonary hypertension with a calculated level of about 70 mmHg. In the absence of any clinical findings supporting the 1948 notation of "hypertension" or showing hypertension at any other time during service, or earlier than many years after the veteran's retirement, the Board is unable to find a causal relationship between this disorder and any incident of service. Because the record does not contain probative evidence attributing the currently shown hypertension to service, the preponderance of the evidence is against entitlement to service connection for a cardiovascular disorder. ORDER Entitlement to service connection for an asbestos-related lung disease is denied. The claim of entitlement to service connection for a heart disorder secondary to an asbestos related lung disease is denied. Entitlement to service connection for a cardiovascular disorder is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -