Citation Nr: 0410990 Decision Date: 04/27/04 Archive Date: 05/06/04 DOCKET NO. 02-19 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for sinus disability. 3. Entitlement to service connection for right great toe disability. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Tracy Alsup, Associate Counsel INTRODUCTION The veteran had active duty service from November 1936 to July 1959. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2002, a statement of the case was issued in October 2002, and a substantive appeal was received in November 2002. The Board therefore has appellate jurisdiction. See generally 38 U.S.C.A. § 7105 (West 2002). The veteran testified at an RO hearing in May 2002 and at a Board hearing at the RO in July 2003. The issue of service connection for low back disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. The sinusitis treated during the veteran's service was acute in nature and not indicative of chronic sinusitis disability. 2. Chronic sinusitis was not manifested during the veteran's active duty service or for many years thereafter, nor is chronic sinusitis otherwise related to such service or to the sinusitis treated during service. 3. Right great toe disability was not manifested during the veteran's active duty service or for many years thereafter, nor is right great toe disability otherwise related to such service. 4. COPD was not manifested during the veteran's active duty service or for many years thereafter, nor is the COPD otherwise related to such service. CONCLUSIONS OF LAW 1. Chronic sinus disability was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2003). 2. Right great toe disability was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2003). 3. COPD was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board notes here that the VCAA letter was sent to the veteran in May 2001, prior to the December 2001 rating decision from which the present appeal arises. Pelegrini v. Principi, 17 Vet. App. 412 (2004). The VCAA notice was therefore timely. The Board also finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to service connection for a low back disability, sinus disability, right toe disability, and COPD. Specifically, the discussions in the May 2001 RO letter and October 2002 statement of the case have informed the appellant of the information and evidence necessary to warrant entitlement to the benefit sought. Moreover, in the May 2001 letter, the appellant was advised of the types of evidence VA would assist in obtaining as well as the appellant's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002). The Board therefore finds that the notice requirements of the new law and regulation have been met. Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the new law and regulation. The record in this case includes service medical records, service personnel records, and private medical records and examinations. The RO assisted the veteran by requesting records from three medical facilities and requesting a disability file from the Social Security Agency. The RO received records from all three of the medical facilities but the veteran's Social Security Folder had been destroyed. The Board notes that the veteran has not received a VA examination in connection with his disabilities; however, there is already sufficient competent evidence of record to allow for appellate review without an examination or opinion. 38 C.F.R. § 3.159(c)(4). Moreover, the veteran indicated on his VA Form 21-4138 that he had read the RO's March 2001 letter advising of what evidence was needed to grant his claim and was not aware of any other source of evidence relevant to the claim now on appeal. Under these circumstances, no further action is necessary to assist the appellant with the claim(s). Under the circumstances of this case, where there has been substantial compliance with the applicable legislation and implementing regulations, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Criteria and Analysis The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Service connection may also be granted for any 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). Sinus Disability The veteran claims that he had some kind of procedure in Camp Pendleton for his sinuses in the 1940's. The service medical records reveal no surgery or procedure, but the veteran was treated for sinusitis in September 1953. The medical examination before his discharge in April 1959 revealed that his sinuses were normal. His medical examination in December 1963 also revealed normal sinuses. Post-service medical records do not show any continuity of sinus problems to suggest any link to the veteran's service. Since there was no follow up treatment for sinusitis and there were no problems in subsequent medical examinations, it appears that the sinusitis treated during service was an acute infection and not indicative of a chronic sinus disability. Right Toe Disability A private medical record dated in August 1992 reveals that he had hammertoe on his right foot requiring re-alignment. However, there is no evidence of a problem with any of his toes on his right foot in service, and the veteran does not claim he had difficulty with his toes in service. Instead, the veteran claims that his hammertoe problem stemmed from his ill fitted boots that were issued to him in service. The veteran left active duty in July 1959. His examination prior to discharge revealed that his feet were normal. A medical examination in December 1963 also indicated that his feet were normal. There is no evidence of the hammertoe problem until 33 years after service. There is therefore no showing of the claimed disorder during service or for many years thereafter. With regard to this issue, the Board is compelled to conclude that the preponderance of the evidence is against the veteran's claim. COPD The veteran was diagnosed with Chronic Obstructive Pulmonary Disease (COPD) by a private doctor in March 1999 after a thoractomy for a benign tumor. Earlier, the February 1998 Radiology reports had indicated that a neoplasm was present in his lung. At the Hearing the veteran indicated it had been 40 years since he smoked and in his notice of disagreement he said that he had not smoked for 25 years. The veteran told one of his doctors in May 2000 that he had smoked approximately 2 packs a day for 35 years, however, in his notice of disagreement he indicated he only smoked during World War II. This evidence at the very least reflects smoking for several years. The service medical documents are negative for any lung disorders other than bronchitis which was noted on his December 1963 examination. He had a chest X-ray in February 1956 which was negative. His examinations prior to 1963 had indicated that his lungs were normal including his April 1959 examination before discharge. No lung disorder was listed on the September and December 1963 report of history. The veteran's essential contention is that he suffers from asbestosis due to asbestos exposure on board Navy ships. The Board acknowledges his active duty service with the Marine Corps which involved transportation onboard Navy ships. The Board also notes that some guidelines for compensation claims based on asbestos exposure were published in DVB Circular 21-88-8, dated May 11, 1988. The DVB Circular was subsequently rescinded but its basic guidelines are now found in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI, para. 7.21 (January 31, 1997). These guidelines note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21- 1, Part VI, 7.21(a), p. 7-IV- 3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App. 523 (1993). It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease, that an asbestos-related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b), p. 7- IV- 3 (January 31, 1997). More recently the United States Court of Appeals for Veterans Claims (Court) has held that "neither MANUAL M21-1 nor the CIRCULAR creates a presumption of exposure to asbestos solely from shipboard service. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure." Dyment v. West, 13 Vet. App. 141 (1999); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-2000. The veteran claimed that he developed COPD from asbestos exposure, however, there is no medical evidence that the veteran has developed asbestosis, the condition caused by the inhalation of asbestos fibers. There is also no medical evidence that his current COPD disability is any way related to asbestos exposure. The veteran claims that the COPD is related to asbestos, but the veteran is not a medical doctor and cannot make a diagnosis. The resolution of issues which involve medical knowledge, such as the diagnosis of disability and determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In his substantive appeal, the veteran also claims that in addition to asbestos exposure his COPD disability is related to his exposure to second hand smoke. The veteran, however, also admits to smoking himself. As discussed above it is unclear precisely how long he has smoked, but it is clear that he smoked for a number of years. Even assuming that smoke caused the veteran's COPD disability, it would be difficult to determine whether his smoking caused the COPD or second hand smoke caused it. Moreover, there is no medical evidence in the record that the veteran's current COPD was caused by second hand smoke and under current statutory law the veteran could not recover for a disability caused by his own smoking. Legislation relating to claims based upon the effects of tobacco products, contained in 38 U.S.C.A. § 1103(a) (West 2002), includes the following: "Notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service." See Public Law No. 105- 206, 112 Stat. 865, § 8202 (1998). This law applies to claims filed after June 9, 1998, and does not affect claims filed on or before that date. The veteran's claim was filed in April 2001, and any claim based on his use of tobacco products is therefore precluded by law. In sum, the Board finds that the preponderance of the evidence is against the veteran's COPD claim. While he does currently suffer from COPD, such disability is not related to his active duty service or to any exposure to asbestos during service. Conclusion In closing, the Board acknowledges the veteran's long period of honorable service. His testimony has been considered together with the evidence of record. While the Board does not doubt the veteran's sincerity in advancing his claims, after weighing the evidence the Board is unable to find such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision as to the sinus disability, right great toe disability, and COPD issues. ORDER Entitlement to service connection is not warranted for sinus disability, for right great toe disability, or for COPD. To this extent, the appeal is denied. REMAND Additional evidence was received from the veteran through his representative in July 2003. Although the matter of a waiver of preliminary RO review of any new evidence was discussed at the July 2003 Board hearing, the veteran's representative indicated at that time that the veteran would decide whether to waive such preliminary review once the evidence was obtained. The evidence received in July 2003 after the Board hearing does not include a waiver. While at least one item of evidence received appears to be a duplicate of evidence already of record, some items appear to be new. All of the newly received medical records appear to document back symptomatology and treatment. Since the veteran has not waived preliminary RO review of the evidence, the Board has no recourse but to return the case to the RO for such action. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Additionally, the veteran alleges that he injured his back during World War II combat action. The record shows that VA has already determined that the veteran did engage in combat as discussed in an August 2002 rating decision which granted service connection for post-traumatic stress disorder. Under the circumstances, the special provisions of 38 U.S.C.A. § 1154(b) (West 2002) are for application. In other words, the veteran's assertions regarding the combat related low back injury are accepted despite the lack of supporting documentation in service medical records. Under these circumstances, the Board believes that a VA examination and opinion are appropriate to determine if any current low back disability is related to the World War II low back injury. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The veteran should be scheduled for a special VA low back examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should clearly report all current low back disorders found to be present. The examiner should be instructed that the claimed low back injury during World War II while diving into a foxhole is conceded by VA. With that instruction in mind, as to any such current low back disorder, the examiner should offer an opinion (after reviewing the claims file to specifically include service medical records and post-service evidence), as to whether it is at least as likely as not (a 50% or higher degree of probability) that such current low back disorder(s) is/are related to the low back injury diving into a foxhole during World War II. 2. After completion of the above, the RO should review the expanded record (to include the evidence received in July 2003) and determine if entitlement to service connection for low back disability is warranted. If the benefit sought is not granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: * Appeal to the United States Court of Appeals for Veterans Claims (Court) * File with the Board a motion for reconsideration of this decision * File with the Board a motion to vacate this decision * File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: * Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2