I ran across this VBA document on the internet. This is helpful reading for anyone considering a pursuit of any ailment that you may think is caused by exposure to the Titan II fuels and all their breakdown chemicals.
A helpful hint for pursing a disability for your exposure are:
1) Go through all your medical service records and find the ones that pertain to your ailment. If you do not have any medical records that show complaints which are now chronic aliments you will have an uphill battle as this person had.
Please read his case and know the hurdles you have in proving your case.
I am in no way discouraging you from filing a case. I am just letting you know the hurdles in front of you are big without supporting service medical records!
Citation Nr: 1020239
Decision Date: 06/02/10 Archive Date: 06/10/10
DOCKET NO. 08-25 071 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUE
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD) with asthmatic bronchitis, to
include as due to chemical exposure.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. J. Houbeck, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1948 to
January 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2008 Regional Office (RO) in
North Little Rock, Arkansas rating decision, which denied the
claim on appeal.
The Veteran had a video hearing before the undersigned
Veterans Law Judge in May 2009. A transcript of that
proceeding has been associated with the claims file.
The record reflects that after the statement of the case
(SOC) the Veteran submitted additional relevant evidence to
the Board. No subsequent supplemental statement of the case
(SSOC) was issued, but this is not necessary because the
evidence was accompanied by a waiver of initial review by the
agency of original jurisdiction in accordance with 38 C.F.R.
§ 20.1304 (2009).
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2)
(West 2002).
FINDING OF FACT
The preponderance of the evidence is against finding that the
Veteran has a current pulmonary or respiratory disability
that is etiologically related to a disease, injury, or event
in service.
CONCLUSION OF LAW
Neither COPD nor asthmatic bronchitis was incurred in or
aggravated by active military service. See 38 U.S.C.A. §§
1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.304 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
Veteran's claims file. Although the Board has an obligation
to provide reasons and bases supporting this decision, there
is no need to discuss, in detail, all the evidence submitted
by or on behalf of the Veteran. See Gonzales v. West, 218
F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review
the entire record, but does not have to discuss each piece of
evidence). The analysis below focuses on the most salient
and relevant evidence and on what this evidence shows, or
fails to show, on the claim. The Veteran must not assume
that the Board has overlooked pieces of evidence that are not
explicitly discussed herein. See Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
address its reasons for rejecting evidence favorable to the
Veteran).
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the Veteran's claim, the Department of
Veteran's Affairs (VA) has met all statutory and regulatory
notice and duty to assist provisions. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the Veteran and his or her representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the Veteran
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the Veteran is expected to provide; and (4)
request that the Veteran provide any evidence in his or her
possession that pertains to the claim. The requirement of
requesting that the Veteran provide any evidence in his
possession that pertains to the claim was eliminated by the
Secretary during the course of this appeal. See 73 Fed. Reg.
23353 (final rule eliminating fourth element notice as
required under Pelegrini II, effective May 30, 2008). Thus,
any error related to this element is harmless.
VCAA letters dated in July 2007 and February 2008 fully
satisfied the duty to notify provisions. See 38 U.S.C.A. §
5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1)
(2009); Quartuccio, at 187. The Veteran was advised that it
was ultimately his responsibility to give VA any evidence
pertaining to the claim. These letters informed him that
additional information or evidence was needed to support his
claim, and asked him to send the information or evidence to
VA. See Pelegrini II, at 120-121.
The letters from the RO explained to the Veteran how
disability ratings and effective dates are determined. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board also concludes VA's duty to assist has been
satisfied. The Veteran's service treatment records are in
the file. The Veteran appears not to have sought treatment
for pulmonary or respiratory problems with the VA after
service. Private medical records identified by the Veteran
have been obtained, to the extent possible. Furthermore, the
Veteran has at no time referenced outstanding records that he
wanted VA to obtain or that he felt were relevant to the
claim.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim. 38 C.F.R. §
3.159(c)(4)(i) (2009). In August 2009 the Board requested a
medical opinion from a pulmonologist in the Veterans Health
Administration (VHA) regarding etiology of the Veteran's COPD
and asthmatic bronchitis. The Board received a response
letter dated in January 2010. In this regard, the Board
notes that once VA undertakes to obtain a VA opinion, it must
ensure that the opinion is adequate. Barr v. Nicholson, 21
Vet. App. 303, 312 (2007). In this case, the VHA specialist
reviewed the claims file and noted relevant documents in
service treatment records and post-service treatment evidence
prior to offering a negative opinion as to any connection
between the Veteran's current COPD and asthmatic bronchitis
and his military service. The Board observes that the
opinions provided were supported by a rationale based on all
the available evidence. There is nothing to suggest that the
specialist's opinion is not sufficiently based in the facts
of the case or that she reached an arbitrary conclusion.
The Board has considered the argument of the Veteran's
representative that the opinion is inadequate because it did
not address one of the questions posed by the Board's VHA
request; namely, that the opinion should express agreement or
disagreement with the April 2008 opinion of the Veteran's
private physician. The Board acknowledges that the January
2010 VHA opinion did not explicitly state agreement or
disagreement with the April 2008 statement of the Veteran's
private physician as requested; however, the opinion
unequivocally rejected the possible connection between in-
service chemical exposure and the Veteran's current COPD and
asthmatic bronchitis raised in the April 2008 letter, and
provided ample rationale for that opinion. Thus, although
the opinion of the private physician was not explicitly
addressed, the VA physician's disagreement with that opinion
is clear, and the reasons for such disagreement are implicit
in the VA physician's rationale. Thus, the Board finds that
the January 2010 opinion substantially complied with the
Board's request, and is sufficient upon which to base a
decision with regards to this claim.
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006).
Service Connection
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1131 (West 2002). That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b) (2009). Service connection may also be
granted for any injury or disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d) (2009).
To establish a right to compensation for a present
disability, a Veteran must show: (1) the existence of a
present disability; (2) in-service incurrence 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. Davidson v. Shinseki, 581 F.3d
1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004).
The Veteran claims that he developed COPD and asthmatic
bronchitis due to his exposure to various chemicals used to
propel the Titan II ballistic missile.
The Veteran's service treatment records are negative for
complaints, treatment, or diagnoses of COPD, bronchitis, or
other pulmonary diseases. Indeed, the Veteran consistently
denied asthma, shortness of breath, or other breathing
problems during service. Physical examinations of the
Veteran resulted in notations of normal or clear with respect
to the lungs.
After service, the evidence of record indicates that the
Veteran was diagnosed with COPD in June 2005, or more than
three (3) decades after service. At that time, the Veteran
reported awakening at night with wheezing, some tightness in
the chest, shortness of breath, and a cough. He denied any
past history of asthma and acknowledged smoking until
approximately 1975. The Veteran reported that he had been a
member of a missile launch crew while in the military and had
worked in a coal mine in the past. The Veteran received
regular treatment for his COPD, including x-rays from June
2005, October 2006, and October 2007 that showed
symptomatology consistent with COPD. In April 2007, the
Veteran was first diagnosed with asthmatic bronchitis.
In April 2008, the Veteran reported to his private treating
physician, apparently for the first time, that he had been
exposed to chemicals while a member of a missile launch crew
in the military. The chemicals reportedly included
trichloroethylene, hydrazine, and nitrogen tetroxide. The
physician noted, "Hydrazine and certainly nitrogen tetroxide
can contribute to lung injury and may be factors in the
patient's respiratory problem."
Based on the foregoing, the Board requested a VHA opinion in
August 2009. The resulting opinion, dated in January 2010,
noted review of the entire claims file. The examiner opined
that the Veteran was less likely to have acquired his COPD
and asthmatic bronchitis from exposure to Titan II missile
propellants/chemicals than to his past history of cigarette
smoking. The examiner noted that in her opinion the
Veteran's current pulmonary disease was not caused by or
contributed to by Aerozine 50 (a 50/50 mixture of hydrazine
and UDMH (unsymmetrical dimethyl hydrazine)), nitrogen
tetroxide, or any of the other compounds claimed by the
Veteran. The examiner noted that the Veteran had first been
diagnosed with COPD in 2005, after having served on a Titan
II launch crew from 1962 to 1966, and that it was highly
unlikely that the first manifestation of exposure would be
the development of COPD or asthmatic bronchitis 40 years
after exposure. By contrast, the examiner noted a documented
history of smoking from at least 1960 to 1975 or 1978. The
examiner observed that the service treatment records
indicated normal examinations with clear lungs and no
complaints of lung problems during and after the Veteran's
missile crew experience. The examiner noted that a May 1966
medical record indicated that the Veteran was transferred
from his duties on the missile crew based on
gastrointestinal, rather than pulmonary, problems. The
examiner indicated that the material safety data sheets
(MSDS) for nitrogen tetroxide and hydrazine both indicate
that acute exposure would be characterized by acute pulmonary
systems like bronchospasm, cough, and shortness of breath,
with delayed pulmonary edema possible. The examiner noted
that the Veteran complained of none of these symptoms and
that if exposure had occurred, the Veteran should have
experienced symptoms prior to 40 years after exposure. By
contrast, the examiner stated that cigarette smoking was a
known cause of COPD with a delayed onset of symptoms.
An April 2010 letter from the Veteran's doctor noted a four
year history on an ICBM launch crew where the Veteran was
exposed to various agents and gases. The Veteran related to
the physician that he carried a detector while working in the
silos and that the detector would sound an alarm.
Having reviewed the complete record, the Board concludes that
the preponderance of the evidence is against finding that the
Veteran's current COPD, asthmatic bronchitis, or other
pulmonary disabilities were incurred in or aggravated by his
military service, to include as a result of chemical
exposure.
As noted above, the Veteran's service treatment records are
silent for any complaints, treatment, or diagnoses of
pulmonary problems during service. The Veteran was not
diagnosed with COPD or asthmatic bronchitis until over three
(3) decades after service.
Initially, the Board has considered the April 2008 private
physician letter that noted a potential relationship between
his current lung disabilities and chemicals the Veteran
claimed to have been exposed to in service. However, as the
April 2008 letter indicates by its terms only a speculative
nexus between in-service chemical exposure and his current
COPD or asthmatic bronchitis, and no rationale is provided in
support of that nexus, the Board finds that this record is of
very limited probative value. See Bostain v. West, 11 Vet.
App. 127 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993)
(holding that medical opinions that are speculative, general
or inconclusive in nature, cannot support a claim).
By contrast, the January 2010 VHA opinion letter specifically
rejects any link between exposure to propellants and
chemicals associated with the Titan II ballistic missile and
the Veteran's current COPD and asthmatic bronchitis. The VHA
examiner reviewed the claims file, including private medical
records and the April 2008 private physician's statement
regarding possible etiology. The opinion provides an
adequate rationale, discussing the Veteran's history of
cigarette smoking, the more than 30-year gap between exposure
and manifestation of symptoms, and that exposure typically
would result in immediate symptom onset.
The Board has considered the treatise evidence submitted by
the Veteran discussing the Titan II missile crew assignment
and resulting chemical exposure. The Board notes that a
medical article or treatise "can provide important support
when combined with an opinion of a medical professional" if
the medical article or treatise evidence discusses generic
relationships with a degree of certainty such that, under the
facts of a specific case, there is at least "plausible
causality" based upon objective facts rather than on an
unsubstantiated lay medical opinion. Mattern v. West, 12
Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet.
App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In
this case, however, the treatise evidence discusses only a
possible relationship between chemicals associated with
nuclear missile sites and pulmonary problems, and such
evidence fails to take into account other relevant factors of
this particular case, such as the Veteran's smoking history.
Thus, the Board places much more probative weight on the
opinion of the VA examiner than on the very general treatise
evidence of record.
The Board has also considered statements from the Veteran and
two fellow members of the Veteran's Titan II missile crew.
These statements assert exposure to hydrazine and nitrogen
tetroxide and that these chemicals are dangerous by breathing
or direct contact. In that regard, while the Veteran and his
fellow service members may be competent to describe symptoms,
as lay persons they have not been shown to be capable of
offering conclusions on complex medical matters. Thus, the
Board finds the January 2010 VHA examiner's opinions in this
regard of greater probative value than the Veteran's and his
fellow service member's statements regarding any possible
effects of chemical exposure or linking any current pulmonary
disability to such exposure. See Jandreau v. Nicholson, 492
F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a
veteran is competent to provide a diagnosis of a simple
condition such as a broken leg, but not competent to provide
evidence as to more complex medical questions).
The Board has also considered the lay assertion by the
Veteran that he experienced shortness of breath while working
in the missile crew, as the rationale provided in the VHA
specifically relied, in part, on the absence of any
complaints in service. However, while the Veteran is
certainly competent to describe such symptomatology, the
Board must find his report not credible given that the
Veteran consistently denied asthma, shortness of breath, or
other breathing problems during service. In reaching this
conclusion, the Board considered the decision in Buchanan v.
Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), wherein
the United States Court of Appeals for the Federal Circuit
determined that the Board erred by finding that a claimant's
report of in-service symptoms lacked credibility solely
because there was no objective medical evidence corroborating
those symptoms at the time. However, the Board believes the
instant case is clearly distinguishable, as the Board is not
relying solely upon a general absence of complaints during
service. Rather, it is relying on the fact that the Veteran
specifically denied such symptomatology while in service.
Finally, the Board recognizes that the Veteran also claims
exposure to asbestos and radioactive isotopes. Specifically,
the Veteran asserts he was exposed to radioactive isotopes
from "MSA" equipment he used and asbestos from insulation.
However, there is no medical evidence linking his current
COPD or asthmatic bronchitis to exposure to these compounds.
Indeed, the medical evidence does not indicate that the
Veteran has even raised such concerns with his private
treating physician or any other medical professional. X-ray
evidence has not revealed any evidence of asbestosis or other
indicators of asbestos exposure. Furthermore, any
allegations claiming his COPD or asthmatic arthritis are
related to asbestos or radioactive isotope exposure are far
beyond the competence of the Veteran as a lay person. See
Jandreau, 492 F.3d at 1377.
In addition, with respect to the assertion that his
disability could be related to radiation exposure, the Board
notes that none of his pulmonary disabilities are among the
diseases listed as being presumptively related to exposure to
ionizing radiation under 38 C.F.R. § 3.309(d) (2009).
Moreover, his disabilities are also not listed among those
contained in 38 C.F.R. § 3.311 (2009), nor is there competent
medical evidence of record identifying any of his
disabilities as a "radiogenic" disease so as to warrant
further development under that regulation.
In summary, there is no credible evidence of complaints,
treatment, or diagnoses of pulmonary disabilities in service.
After service, the Veteran was not diagnosed with COPD or
asthmatic bronchitis for more than three (3) decades, and the
most probative medical evidence of record specifically
rejects a link between his current disabilities and chemical
exposure in service. Thus, the Board finds that the benefit
of the doubt doctrine is not for application and that the
claim must be denied. See generally Gilbert v. Derwinski, 1
Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F. 3d 1361
(Fed. Cir. 2001).
ORDER
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD) with asthmatic bronchitis is denied.
____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs