Citation Nr: 0007801 Decision Date: 03/23/00 Archive Date: 09/08/00 DOCKET NO. 96-45 706 DATE MAR 23, 2000 On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD) claimed as secondary to in-service asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service from January 1948 to November 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for asbestosis and COPD, claimed as resulting from in-service asbestos exposure. In February 1998, the Board remanded this claim for @er development. Upon remand, the RO granted service connection for asbestosis/asbestosis pleural disease/asbestosis lung disease, and assigned a 10 percent evaluation effective December 28, 1995. That rating decision represented a full grant of the benefit sought, i.e. service connection for asbestosis. As the veteran did not express disagreement with the "down-stream" issue of the effective date or the disability evaluation assigned to the RO's grant of service connection, that matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability); see also Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). However, in the February 1999 rating decision effectuating the above, the RO continued to deny service connection for COPD and that issue remains on appeal. FINDING OF FACT COPD was first shown many years after service and is not shown to be the result of in-service asbestos exposure or otherwise related to service. 2 - CONCLUSION OF LAW COPD was not incurred or aggravated as a result of active service. 38 U.S.C.A. 1110, 1131, 5107 (West 1991); 38 C.F.R. 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Pertinent Laws and Regulations In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. 1110, 1131; 38 C.F.R. 3.303. Service connection may also be granted for a 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). VA has issued the following circular on asbestos-related diseases which provides some guidelines for considering compensation claims based on exposure to asbestos: Department of Veteran's Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (hereinafter, "the DVB Circular of May 1988"). McGinty v. Brown, 4 Vet. App. 428,432 (1993). The Department of Veterans' Benefits, VA, DVB Circular of May 1988 emphasizes that with asbestos-related disease, "the latent period varies from 10 to 45 or more years between first exposure and development of the disease." Factual Background The veteran served in the United States Navy from 1948 to 1953, aboard Naval ships with duty assignments of boiler technician and fire control technician. The Navy has classified certain occupational specialties as being at risk for asbestos exposure; boiler tender is listed as number four on a prepared list of Naval - 3 - assignments at the greatest risk for asbestos-related diseases. Service medical records are negative for notation of any chronic respiratory disorder. The veteran has provided a post-service occupational history as a deliveryman, heavy equipment operator and then as a repairman for car and truck bumpers, without significant post-service exposure to asbestos or toxic substances. At the time of a VA examination in April 1962, chest x-ray was negative. In connection with a March 1967 VA examination the veteran reported working at Hank's Construction as a foreman, since 1956. A chest x- ray at that time revealed no pulmonary disease. In connection with a VA examination performed in May 1976, the veteran reported working for United Bumper Exchange since approximately 1969 as a maintenance and general overhaul and repair specialist. A chest x-ray at that time revealed no pulmonary disease. In August 1994, the veteran underwent comprehensive evaluation by a pulmonary specialist, C. Waggenspack, M.D., FCCP. Dr. Waggenspack noted the veteran's in- service asbestos exposure history as well as the veteran's negative post-service occupational exposure history, his age, and the fact that the veteran provided a history of tobacco use since age 8 or 9. Dr. Waggenspack provided a medical opinion based on examination, the veteran's history and an accompanying B-reader certificate. (A "B reader" is one certified by examination to read and grade asbestos films). The B reader certificate indicates that the veteran's chest x-ray revealed parenchymal abnormalities consistent with pneumoconiosis. The veteran had small opacities and large opacities in his lungs. An X- ray also revealed pleural abnormalities consistent with pneumoconiosis: there was pleural thickening and pleural calcification. Dr. Waggenspack opined that "without doubt [the veteran] has the pleural changes of asbestos exposure." Dr. Waggenspack stated that the veteran's pneumoconiosis was marginal and that having considered "that all [the veteran's] changes might be related to his tobacco and the ravages of age ... decided - 4 - that he did have mild, small, irregular densities of asbestosis. He does have a small calcified area on his pericardium and a modest degree of pleural plaques without calcification anywhere else." Clinical records pertinent to treatment by Dr. Waggenspack are also of record. In October 1994, Dr. Waggenspack noted that the veteran was still smoking and advised the veteran that "if the incidence of cancer in a non-smoking non-asbestos- exposed was one the incidence in a non-asbestos-exposed smoker was 8 and the incidence of someone who smoked and had asbestos exposure was at least 93." A VA examination was conducted in February 1996. The report includes a history of the veteran's in-service asbestos exposure and notes his receipt of settlement monies from an asbestos company, apparently based on asbestos exposure. The diagnoses were a history of asbestosis with normal physical examination at that time and COPD. X-rays at that time revealed bilateral mild pleural thickening. In a letter dated in September 1996, J. Leopard, III, M.D., associated with a family practice clinic, stated that the veteran was seen by Dr. Waggenspack upon referral for what was felt to be COPD, possibly secondary to asbestos exposure. In statements dated in September 1996 and May 1997, Dr. Leopard reported evaluation of the veteran and referral to Dr. Waggenspack on January 3, 1994, "for what I felt was [COPD]; possibly secondary to asbestos exposure." In November 1997, the veteran was evaluated by R. Bryn, M.D., FCCP. The impressions were asbestosis; probable obstructive airway disease; and status post hernia repair. Chest x-rays revealed scattered calcifications with some pleural thickening in the mid- lung fields bilaterally and very minimal basilar interstitial infiltrates. The claims file contains a products liability settlement dated in June 1995 between Babcock & Wilcox Company and Diamond Power Specialty Corporation, and the veteran, based on damages allegedly caused by exposure to asbestos-containing 5 - products. In a letter dated in August 1998, the attorney's office provided information to the effect that the veteran was awarded settlement based on exposure between 1946 and 1953 to asbestos while serving on United States Naval ships Hamner, Perkins and Fibley. Pursuant to the Board remand in February 1998, the RO obtained a VA examination in January 1999 as to the veteran's pulmonary status. The examiner noted a medical history to include the onset of pulmonary symptoms in the late 1980s, which had worsened over the years. The examiner also noted the veteran's military duties as a ship fireman and boiler technician/repairman, with asbestos exposure, and a post-service history in construction, without any post-service asbestos exposure, except for a one-time boiler installation. The examiner also noted the veteran's history of smoking one and one-half to three packs of cigarettes a day for most of his adult life. The examiner cited relevant data from medical records dated in March 1990 and August 1994 and then performed current examination, the results of which are shown in the examination report. The examiner diagnosed asbestos lung diseases of asbestos pleural disease and asbestosis, for which the veteran has now been service-connected. The VA examiner also diagnosed COPD, and stated that the veteran's "long history of cigarette smoking is the most likely etiology of the chronic obstructive lung disease." In a statement received in April 1999, the veteran disagreed and argued that his lung disease was caused by exposure to asbestos. Analysis The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. 5107; he has presented a claim that is plausible based on all the evidence. The Board is also satisfied that all relevant and available facts have been properly developed. The veteran has been examined by the VA in connection with his claim and has not identified any additional, relevant evidence that has not been requested or obtained. The Board finds all relevant evidence necessary for an 6 - equitable disposition of the appeal has been obtained, and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. 5107. Service medical records do not show COPD. In fact, COPD is first documented in the record in medical evidence dated decades after the veteran's discharge from service. Although the veteran's private physician, Dr. Leopard, who apparently is a family practitioner, indicated that COPD was possibly related to asbestos exposure, that opinion is not sufficient to establish service connection. It does not appear that in arriving at that opinion Dr. Leopard considered the veteran's smoking history in addition to his asbestos exposure history. In any event, neither Dr. Bryn nor Dr. Waggenspack, who evaluated the veteran for pulmonary disease and are both chest disease specialists, confirmed a relationship between COPD, as opposed to other lung disease, and asbestos exposure. The Board finds the VA opinion obtained in January 1999 more probative than the above in that the examiner considered the veteran's asbestos exposure and his smoking history. Additionally, that examiner is a specialist in chest diseases, being a Fellow of the American College of Chest Physicians (FCCP). Although the VA examiner specifically diagnosed certain asbestos-related diseases, he concluded that the veteran's long history of cigarette smoking was the most likely etiology of COPD. The record contains no other competent opinion liking COPD to asbestos exposure. Nor is there any opinion otherwise relating COPD to the veteran's period of service. The record does not reflect that the veteran possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or etiology competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the preponderance of the competent and probative medical evidence either offers no opinion as to any relationship between COPD and in-service asbestos exposure, or affirmatively links COPD to a cause other than service. Accordingly, the evidence is not in equipoise, and the veteran's claim is denied. 7 - ORDER Service connection for COPD is denied. JANE E. SHARP Member, Board of Veterans' Appeals - 8 -