Citation Nr: 1513639 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 08-24 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for pulmonary fibrosis, claimed as due to asbestos or herbicide exposure. 2. Entitlement to service connection for a bone density deficiency, to include a calcium deficiency, claimed as secondary to medication prescribed for treatment of a service-connected seizure disorder. 3. Entitlement to service connection for a dental condition, claimed as secondary to medication prescribed for treatment of a service-connected seizure disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from July 1961 to May 1964. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2007 and a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran was scheduled for a videoconference hearing before the Board. However, in February 2015 written correspondence, the Veteran's representative, on his behalf, cancelled the Board hearing. The issue of entitlement to service connection for pulmonary fibrosis, claimed as due to asbestos exposure or as due to herbicide exposure is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The Veteran's claimed bone density deficiency of osteopenia is a clinical finding and does not constitute a disability for VA compensation purposes. A disability, such as osteoporosis, is not diagnosed. 2. The only VA dental opinion evidence of record shows that the Veteran has Dilantin hyperplasia, due to medication prescribed for treatment of a service-connected seizure disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a bone density deficiency, to include a calcium deficiency, claimed as secondary to medication prescribed for treatment of a service-connected seizure disorder, have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2014). 2. The criteria for service connection for a dental disability, diagnosed as Dilantin hyperplasia, secondary to medication for treatment of a service-connected seizure disorder, have been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in May 2007 and in February 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent May 2014 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2014). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2014). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2014). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995). The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Bone Density Deficiency, to Include Calcium Deficiency The service medical records are negative for any complaints, findings, or diagnosis of any bone density or calcium deficiency disability. A June 2007 VA medical record notes that the Veteran was assessed with osteopenia that was likely secondary to long term Phenytoin use and a vitamin D supplement was recommended. An October 2007 VA bones examination report shows that the claims file was reviewed. The Veteran provided a history of seizures dating to 1963, for which he had taken Phenytoin ever since. At present, the Veteran was having complaints of pain persisting in the legs, back, and extremities. The examiner noted that the Veteran had a DEXA scan in September 2006 that revealed that the bone mineral density of the lumbar spine was suggestive of osteopenia with mild fracture risk. The mean bone mineral density of bilateral femoral necks was also suggestive of osteopenia, and therefore, the Veteran was continued on Vitamin D and calcium. The diagnosis provided did not include osteopenia or osteoarthritis. The VA examiner stated that the Veteran had never had osteomyelitis, bone infection, nor surgeries for any bone-related issues. He was not on specific treatments for bone loss other than Vitamin D and calcium. Bone disease in was simply demineralization, which was mild and known to accompany long-term Phenytoin use. There were no constitutional symptoms due to osteoporosis, and no evidence of malignancy. An October 2007 VA neurological examination report shows that the Veteran complained of pain in the joints and that he had some osteoporosis for which he took Vitamin D and calcium. The Veteran had taken Dilantin for the last 40 years. The examiner noted a review of the records and that on October 2, 2007, a VA physician mentioned that osteopenia could be related to long-term Dilantin use. However, on review of the PDR book under Phenytoin, that examiner could not find a mention of osteopenia as one of the side effects from Phenytoin use. A June 2010 VA examination was undertaken to determine the nature and etiology of any bone density deficiencies. The examiner reviewed the claims file and that he took a history from the Veteran. The Veteran had chief complaints of neck, upper back, low back, bilateral hips, knees, ankles, feet, shoulders, elbows, wrist/hands, and fingers pain. The examiner noted that the Veteran was taking Dilantin (Phenytoin). The Veteran indicated that when he was in Okinawa he had an incident where he developed low back pain afterwards. The diagnosis was a question of osteopenia secondary to chronic intake of Phenytoin (Dilantin). The examiner noted that there was a mention of DEXA in 2006 which demonstrated a mild case of osteopenia with a mention of low risk for possible fracture. He had been on Calcium and Vitamin D for many years due to the suspicion of osteopenia. The examiner stated it was difficult to determine if the osteopenia was due to Dilantin. The examiner stated that further research should be done to determine the casual relationship between Dilantin and osteopenia. The examiner noted some studies about Dilantin and that it was a toxic drug. At this time, it was at least as likely as not that the osteopenia could be caused by the Phenytoin intake on a chronic basis. A June 2010 VA plastic surgery pre-operation report shows that in a history provided by the Veteran, he had osteoporosis. A November 2010 VA medical record notes that the Veteran's left knee pain was likely secondary to osteoarthritis. In May 2014, an additional VA medical opinion was obtained to clarify prior examination conclusions. The examiner noted and discussed the prior VA medical opinions. This examiner opined that it was less likely than not that the Veteran had osteoporosis. The Veteran had mild osteopenia, a condition where bone mineral density was lower than normal, as confirmed by a DEXA scan done in 2006. That condition of mild osteopenia did not meet the requirements for a diagnosis of osteoporosis. The examiner further stated that by review of the Veteran's medical records, the Veteran had spinal osteoarthritis and cervical radiculopathy, which were more likely than not the cause of any claimed joint condition. The Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran has a bone density deficiency disability, to include a calcium deficiency disability, related to service or as secondary to medication prescribed for treatment of a service-connected seizure disability. As indicated above, the Veteran has been diagnosed with mild osteopenia, which is merely a term to refer to any decrease in bone mass below normal. Dorland's Illustrated Medical Dictionary 1336 (30th ed. 2003). There is no evidence that the Veteran has ever been diagnosed with an actual disability due to osteopenia, such as osteoporosis. In fact, in the May 2014 VA opinion, the examiner concluded that the Veteran's condition of mild osteopenia did not meet the requirements for a diagnosis of osteoporosis. The Board finds the June 2010 notation in a VA plastic surgery pre-operation that the Veteran reported having osteoporosis without additional comment as to that specific matter to be of no probative value. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. Leshore v. Brown, 8 Vet. App. 406 (1995). Additionally, a doctor's diagnoses can be no better than the facts alleged by appellant. Swann v. Brown, 5 Vet. App. 229 (1993). The Board finds that service connection is not warranted for a bone density deficiency, to include a calcium deficiency, related to service or as secondary to medication prescribed for treatment of a service-connected seizure disorder. The Board finds that the preponderance of the evidence is against a finding that there is a disability. The evidence is against a finding that the 2006 bone scan reading which indicated a finding of osteopenia has actually manifested as a disability within the meaning of the law. Without evidence of a current disability, the veteran's claim for service connection is denied. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); 61 Fed. Reg. 20440, 20445 (May 7, 1996) (An elevated cholesterol level represents only a laboratory finding, and not an actual disability in and of itself for which VA compensation benefits are payable). The law limits entitlement to service connection service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Veteran has submitted an article regarding the health risks of long term Dilantin use, that evidence, is not directly relevant to, and thus is not probative of, this Veteran's claim, particularly in the absence of a supporting medical opinion or other probative finding an actual disability for VA purposes. Wallin v. West, 11 Vet. App. 509 (1998). Furthermore, as for any direct assertions by the Veteran or representative that there exists a medical relationship between the Veteran's bone disorder and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matter of the diagnosis and etiology of a disability such as a bone density disability is one within the province of trained professionals. Jones v. Brown, 7 Vet. App. 134 (1994). Neither the Veteran nor representative is shown to be other than a layperson without the appropriate training and expertise. Therefore, neither is competent to render an opinion on the medical matter upon which this claim turns. Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Routen v. Brown, 10 Vet. App. 183 (1997). Therefore, the lay assertions of a medically diagnosed disability and nexus have no probative value. Because the preponderance of the evidence is against the finding that there is a current disability for VA purposes, the claim for service connection for a bone density deficiency, to include a calcium deficiency, related to service or secondary to medication prescribed for treatment of a service-connected seizure disorder, must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Dental Disability The Veteran asserts that he has a dental condition as a result of medications, specifically Dilantin, that he takes for a service-connected seizure disorder. In an October 2010 VA dental examination report, a VA examiner diagnosed the Veteran with mild/minimal Dilantin hyperplasia secondary to Dilantin used to control a seizure disorder. There is no competent medical opinion which explicitly refutes that of the October 2010 VA examiner. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (only medical evidence may be considered to support medical findings, the Board is not free to substitute its own judgment for that of an expert). Accordingly, the Board finds that service connection for hyperplasia, shown by the evidence secondary to medication prescribed to treat a service-connected seizure disorder, is warranted. 38 C.F.R. § 3.102 (2014); 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bone density deficiency, to include a calcium deficiency, claimed as due to medication prescribed for treatment of a service-connected seizure disorder, is denied. Service connection for Dilantin hyperplasia, as due to medication prescribed for treatment of a service-connected seizure disorder, is granted. REMAND The Veteran contends this diagnosed pulmonary fibrosis was caused by exposure to asbestos or by exposure to herbicides during service, specifically exposure to asbestos while on Navy ships or herbicides from service in Okinawa. The Veteran's service separation form shows that his military occupational specialty was that of a machine gunner. VA personnel records confirm that the Veteran served on board several Navy ships and was in Okinawa at various times in 1963 and 1964. In a June 2009 rating decision, the RO accepted that the Veteran may have been exposed to asbestos based on his service on several different Naval ships. In the alternative, the Veteran asserts that he taught counter guerrilla warfare in the northern training area of Okinawa in 1963 when herbicides were used. A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents during that service, absent affirmative evidence to the contrary. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2014). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2014). However, pulmonary fibrosis is not included as one of the diseases in which presumptive service connection is warranted. Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. Also, when a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record does not reveal, and the Veteran does not contend, that he served in the Republic of Vietnam during the Vietnam era. Nevertheless, Veterans who were otherwise exposed to herbicides may also take advantage of those presumptive provisions. However, unlike Vietnam Veterans, they are required to prove that they were, in fact, exposed to herbicides during their service and they do not receive the benefit of a presumption of exposure as do Vietnam Veterans. 38 C.F.R. § 3.307(a)(6)(iii) (2014). The Board notes that while the Veteran has submitted a July 2007 news article that Agent Orange was likely used in Okinawa based on a 1998 Board of Veterans' Appeals decision, prior Board decisions are binding only on the specific case decided, and the decision cited has no precedential value in the instant case. 38 C.F.R. § 20.1303 (2014). Nonetheless, the VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section 10 n, addresses the verification of exposure to herbicide agents in locations other than Vietnam or Korea. The RO is supposed to request an herbicide exposure verification from the Department of Defense for the timeframe delineated by a claimant. In this case, no such request has not yet been made to the Department of Defense and a remand is warranted for additional development. In addition, VA obtained a March 2009 VA medical opinion addressing whether the Veteran had pulmonary fibrosis related to asbestos exposure in service. In that opinion, the VA examiner concluded that the Veteran had pulmonary fibrosis, but the exact cause was unknown. The examiner stated that there were no radiographic features which indicated asbestos. Therefore, there was no clear-cut evidence that the Veteran's condition resulted from asbestos exposure from service or anywhere else. However, the examiner then stated that there was a small percentage of cases, from 10 to 15 percent, where there were no radiographic features suggesting pulmonary asbestosis, when in fact, pulmonary asbestosis had been known to occur. The examiner then opined on that basis that it was unlikely, but not impossible, that the Veteran's condition occurred due to exposure to substances, including asbestos during service. The Board finds that opinion raises more questions than it answers and lacks clarity necessary for adjudication. Therefore, a remand for a new VA examination is warranted. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following actions: 1. Follow M21-1MR, Part IV, Subpart ii, Chapter 2, Section 10 n. or its equivalent and request herbicide exposure verification from the Department of Defense for the periods when the Veteran was in Okinawa. If the Department of Defense does not confirm herbicide exposure, refer the Veteran's pertinent information to the United States Army and Joint Services Records Research Center (JSRRC) with a request for verification of exposure to herbicides. 2. Then, arrange for the Veteran to undergo a VA examination, by a medical doctor with the appropriate expertise to determine the nature and etiology of pulmonary fibrositis. Inform the examiner whether exposure to herbicides in service has been verified. The examiner must review the record, and the examination report should show consideration of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished and all clinical findings reported in detail. In providing the opinions requested, the examiner is requested to address the findings in the March 2009 VA examination report. a) The physician should specifically state whether it is at least as likely as not (50 percent probability or greater) that pulmonary fibrosis is related to active service, including exposure to asbestos, and if verified, exposure to herbicides. The examiner should specifically comment on whether any diagnosed pulmonary fibrosis had initial manifestation during active service, and should opine as to the most likely etiology. The examiner should discuss the appellant's Navy service and his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. (b) If the physician believes that other factors were more likely the cause of pulmonary fibrosis, and that it is unlikely that asbestos exposure or any other aspects of the Veteran's service caused pulmonary fibrosis, the clinician must so state and provide a specific explanation. 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs