Citation Nr: 1526902 Decision Date: 06/24/15 Archive Date: 06/30/15 DOCKET NO. 13-21 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure. 2. Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide exposure. 3. Entitlement to service connection for bronchitis. 4. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, claimed as emphysema due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to September 1967. This case comes to the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. For the reasons below, the issues of entitlement to service connection for ischemic heart disease and type II diabetes mellitus, each claimed as secondary to herbicide exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A respiratory disorder was not manifested during the Veteran's active duty service and no currently diagnosed respiratory disorder is shown to be related to service. 2. There is no competent evidence that the Veteran has had bronchitis at any time during the appeal period. CONCLUSIONS OF LAW 1. A respiratory disorder was not incurred or aggravated in service, and no respiratory disorder is otherwise related to service. 38 U.S.C.A. §§ 1103, 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). 2. Bronchitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A (2014) have been met. There is no issue as to providing an appropriate application form or with the completeness of the application. In December 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including notice of what part of the evidence should be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims. In addition to his service treatment records, the AOJ acquired copies of the Veteran's post-service VA treatment records. VA treatment records were the only post-service medical records identified with sufficient specificity to enable the AOJ to obtain them. In his initial application for compensation benefits for bronchitis and emphysema, the Veteran referred to treatment for bronchitis and emphysema while incarcerated in Oklahoma. The December 2011 notification letter explained to the Veteran that, if he wanted the AOJ to obtain these or any other records, he needed to complete and return a written release of information. The necessary release was attached to the December 2011 letter, but the Veteran never authorized VA to obtain the prison medical records. After receiving the December 2011 notice letter, the Veteran submitted a statement indicating that "all treatment" was performed at a VA Medical Center. VA did not obtain a medical opinion or examination with respect to the claims of entitlement to service connection for a respiratory disorder, claimed as emphysema, or for bronchitis. VA has an obligation to obtain a medical opinion when the record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of a disorder, and (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While the threshold for requiring a medical opinion is low, with respect to the bronchitis claim, there is no competent evidence that the Veteran has suffered from bronchitis at any time since he filed his claim in September 2011. Cf. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (presence of a disability at the time of filing or during the pendency of a claim meets the "current" disability requirement, even if the disability resolves before VA decides the claim). As for the claim for a respiratory disorder, claimed as emphysema, the Veteran's VA treatment records establish a diagnosis of chronic obstructive pulmonary disease. Notably, the only indication that this disease is related to the Veteran's naval service is this statement from the appellant himself when he wrote "while I was in the Navy is when I was exposed to asbestos [which] is the cause of this condition . . ." There is no medical evidence linking chronic obstructive pulmonary disease to service, and the Veteran's statement does not indicate that any medical professional has ever suggested that his chronic obstructive pulmonary disease is related to service. As a layperson, the Veteran is competent to comment on the cause of an injury with an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The Veteran, however, is not competent to provide testimony concerning a matter of medical complexity, such as whether chronic obstructive pulmonary disease is related to exposure to asbestos. For these reasons, the evidence did not trigger VA's duty to obtain a medical opinion with respect to the Veteran's bronchitis and chronic obstructive pulmonary disease claims. Service Connection for Bronchitis Before the Veteran can establish the right to compensation for a disability, the evidence must show that a connection exists between a current disability and a disease, injury or event which occurred during his military service. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a causal connection or nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). According to his service treatment records, the Veteran was hospitalized for acute bronchitis in late May and early June 1964. He remained in the Navy until September 1967, but there is no indication - either in the service treatment records or in his lay statements - that he suffered from bronchitis after June 1964 and before his discharge from active duty. The September 1967 separation examination report indicates that his nose, sinuses, mouth and throat were normal. The Veteran's hospitalization for bronchitis satisfies the in-service disease or injury requirement. Fagan, 573 F.3d at 1286. The Veteran's claim, however, must be denied because there is no competent medical evidence that he currently has bronchitis or that he had the disease at any time during the appeal period. See McClain, 21 Vet. App. at 321. Further, there is no competent evidence that any current diagnosis of bronchitis is related to his active duty service. The only post-service medical evidence in the record is a series of VA treatment records, which describe treatment between January 2011 and June 2012. These records reflect treatment for several diseases and injuries, including chronic obstructive pulmonary disease. Indeed despite frequent monitoring by medical personnel, these records do not mention bronchitis at all. The Board has considered the statements submitted by the Veteran in support of his bronchitis claim. His initial application mentions one date (1997) of treatment for bronchitis. To be considered a current disability, however, a disease or injury must be present at some time during the pendency of the claim, McClain, 21 Vet. App. at 321, and a claim of entitlement to service connection for bronchitis was not presented until September 2011. The Veteran wrote that, "I disagree with the denial of service connection for chronic bronchitis, I was an inpatient for 16 days while in San Diego for this." Although the Veteran does not mention a date for this hospitalization, San Diego was the location of the naval hospital where he was treated for bronchitis in late May and early June of 1964. While the Veteran's 1964 hospitalization lasted twelve days, the Board finds that, in context, the Veteran's statement most likely refers to his in-service hospitalization. As noted, however, the record includes no medical evidence indicating that the Veteran has bronchitis now, or that he has had bronchitis at any time since he filed his claim. Though the evidence satisfies the in-service disease or injury requirement, there is no evidence tending to show the existence of the other requirements, i.e., there is no competent evidence of a current disability or competent evidence of a causal nexus between service and bronchitis. It must be noted that a lay person, such as the appellant, does not possess the medical training and knowledge to diagnose bronchitis. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a respiratory disorder, including chronic obstructive pulmonary disease claimed as emphysema The Veteran claims he developed emphysema due to his exposure to asbestos when he was serving as a boatswain's mate aboard the USS Hassayampa (AO-145). Pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board will recharacterize his claim as one for service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, to reflect the respiratory disorder demonstrated by the medical evidence. Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has guidelines for compensation claims based on asbestos exposure. See VA Adjudication Procedure Manual M21-1, Part IV, Subpart ii, Chapter 2, Section C. The manual lists certain diseases associated with exposure to asbestos, including mesothelioma and asbestosis. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims indicated that provisions in VA Manual M21-1, Part VI, did not create a presumption of asbestos exposure. In this case, a detailed application of these provisions is unnecessary because chronic obstructive pulmonary disease is not an asbestos-related diseases mentioned in the M21-1 Manual. Nevertheless, medical nexus evidence is required even for claimants with an asbestos-related disease which is alleged to be the result of asbestos exposure in service. See VAOPGCPREC 4-00 (Apr. 13, 2000). Competent evidence of a causal nexus between chronic obstructive pulmonary disease and asbestos exposure is also necessary under the generally applicable rules for deciding claims for service connection. See 38 C.F.R. § 3.303. Given the age of the Veteran's ship - the Dictionary of American Naval Fighting Ships indicates that USS Hassayampa was launched in 1954 - and the nature of his duties as a boatswain's mate, the Board will concede in-service exposure to asbestos. His current VA treatment records, which include a diagnosis of chronic obstructive pulmonary disease, satisfy the current disability requirement. Hence, the success of the appellant's claim depends on the existence of a causal connection or nexus between asbestos exposure and chronic obstructive pulmonary disease. Fagan, 73 F.3d at 1286. None of the medical evidence in the record suggests that any current respiratory disorder, to include chronic obstructive pulmonary disease is related to asbestos. The only suggestion of a relationship is the statement from the Veteran's notice of disagreement that he disagreed with the denial of service connection for emphysema associated with asbestos which he believed was due to inservice asbestos exposure. The Veteran provided no medical evidence in support of his lay opinion, either in his notice of disagreement or in his other written statements to VA. The Veteran's statement does not suggest that he is repeating the opinion of a medical professional. Again, there is no evidence that any medical professional has ever suggested that his chronic obstructive pulmonary disease is related to asbestos. As a layperson, the Veteran is competent to testify with respect to relatively simple medical matters within the personal knowledge of an ordinary person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau, 492 F.3d at 1377 n. 4. He is not competent to give an expert opinion on a matter of medical complexity, such as the probability of a relationship between his chronic obstructive pulmonary disease and asbestos. Competency "is a legal concept determining whether testimony may be heard and considered by the trier of fact . . ." Layno, 6 Vet. App. at 469. Because the Veteran's lay statements are the only information in the record suggesting that a nexus exists between his chronic obstructive pulmonary disease and naval service (an issue on which he is not competent to offer an opinion), it follows that the trier of fact - in this case, the Board - cannot consider this opinion at all and, therefore, that no competent evidence exists tending to show a causal relationship between chronic obstructive pulmonary disease and naval service. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). While the record satisfies the in-service injury or event and current disability requirements, there is no competent evidence that chronic obstructive pulmonary disease is related to asbestos exposure or to any other disease, injury or event in service. Accordingly, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bronchitis is denied. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, claimed as emphysema secondary to exposure to asbestos, is denied. REMAND The Veteran contends that he has ischemic heart disease and type II diabetes mellitus as a result of herbicide exposure while stationed aboard the USS Hassayampa off the coast of Vietnam. As a consequence, the Veteran argues that he is entitled to presumptive service connection for both conditions. See 38 C.F.R. § 3.309(e) (2014). The Veteran's personnel records show that, with the exception of a brief interval in January 1967, he served aboard the USS Hassayampa from March 1965 to September 1967. The RO has determined that the during the appellant's active duty service the Hassayampa served in the official waters of the Republic of Vietnam in 1965 from May 5- 23, from May 25 to June 5, from June 17-30, from July 10-20, from July 26-29, from August 16-25, from September 2-11, from September 20 to October 3, from October 18 to November 1, and from November 12-24. In 1966, the Hassayampa was in Vietnamese waters from June 28 to July 5, from July 14-23, from July 31 to August 6, from August 17-22, from September 4-10, from September 23 to October 2, from October 18-22, and from October 30 to November 13, 1966. This information, however, does not confirm that the Hassayampa was in Da Nang Harbor in June 1966. It is necessary to determine whether the Hassayampa ever was in Da Nang harbor. In this regard, in April 2015, the United States Court of Appeals for Veterans Claims held that a fact-based assessment must be made regarding the probability of herbicide spraying in certain offshore areas not traditionally considered inland waterways, specifically Da Nang harbor. See Gray v. McDonald, No. 13-3339 (U.S. Vet. App. Apr. 23, 2015), 2015 WL 1843053. Because the Veteran has asserted that the USS Hassayampa docked at Da Nang Harbor when he was on the ship, further development must be conducted to determine where exactly his ship was stationed, and whether those areas meet the definition of an inland waterway in light of the Gray decision. Finally, the Veteran claimed service connection for ischemic heart disease, but his post-service records of medical treatment include diagnoses of valvular heart disease and hypertensive heart disease. It is unclear whether these conditions meet the definition of ischemic heart disease for the purpose of the presumption of service-connection for herbicide exposure. According to 38 C.F.R. § 3.309(e), the term ischemic heart disease includes, but is not limited to, acute, subacute and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary artery spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. The term does not include hypertension or peripheral manifestations of arteriosclerosis such as a peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id. n. 2. On remand, the Veteran should have the opportunity to submit evidence indicating that he has one of the heart disorders which is considered synonymous with ischemic heart disease according to 38 C.F.R. § 3.309(e). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he has the opportunity to submit medical or other evidence indicating that he has a current diagnosis of ischemic heart disease, to include an acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary artery spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. 2. Following the guidelines outlined in M21-1, the AOJ must contact the National Personnel Records Center and the U.S. Army and Joint Services Records Research Center to attempt to verify the exact locations of the USS Hassayampa during the months the Veteran served on that ship while that ship was in the territorial waters of the Republic of Vietnam. M21-1, IV, ii, 1, H, 28, i. The National Personnel Records Center and the U.S. Army and Joint Services Records Research Center must specifically state whether the Hassayampa was ever in Da Nang Harbor while the appellant was a member of ship's company. 3. After the precise locations of the USS Hassayampa during the times noted above are determined, the AOJ must review those locations in light of the Court's decision in Gray, No. 13-3339, 2015 WL 1843053. That is, the RO is to specifically address whether the Hassayampa ever entered Da Nang Harbor or any inland waterway as VA defines that term in light of Gray. 4. Following completion of the above, if herbicide exposure cannot be verified, issue a formal finding explaining all steps taken and notify the Veteran and his representative. 5. After completion of the above development, the claim should be readjudicated. In light of Gray the RO must specifically address whether the appellant is entitled to a presumption that he was exposed to herbicides, to include Agent Orange, while on active duty. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs