Citation Nr: 0601898 Decision Date: 01/23/06 Archive Date: 01/31/06 DOCKET NO. 03-22 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Offices in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for venereal warts. ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from November 1972 to November 1975. The issues of entitlement to service connection for asbestosis and a cervical spine disability are before the Board of Veterans' Appeals (Board) following a Board Remand in May 2005. These matters were originally on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Petersburg, Florida and Jackson, Mississippi. In that May 2005 Decision and Remand, the Board also denied service connection for venereal warts. In November 2005, the veteran's attorney and the Secretary filed a Joint Motion for Remand with respect to that issue with the United States Court of Appeals for Veterans Claims (CAVC). In November 2005, the CAVC granted the motion and vacated and remanded that part of the Board's May 2005 decision for readjudication consistent with the motion. The issue of entitlement to service connection for venereal warts is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's asbestosis is not related to active service. 2. The veteran's cervical spine disability is not related to active service. CONCLUSIONS OF LAW 1. Asbestosis was not incurred in or aggravated by active service. 38 U.S.C.A. §1110, (West 2002); 38 C.F.R. § 3.303 (2005). 2. A cervical spine disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Board's May 2005 Remand, the issues of entitlement to service connection for a cervical spine disorder and service connection for asbestosis were readjudicated on the merits and a Supplemental Statement of the Case (SOC) was issued. Based on the foregoing actions, the Board finds that there has been compliance with the Board's May 2005 Remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board has thoroughly reviewed all the evidence in the appellant's claims folder, which includes, but is not limited to, prior rating decisions; the appellant's contentions, VA examination report dated in November 1999; VA records for treatment; and various private medical records for treatment. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on each claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The veteran seeks service connection for asbestosis and a cervical spine disability. The veteran claims that he was exposed to asbestos while living in barracks during basic training from November 1972 to January 1973. The veteran also claims that his cervical spine disability is caused from a skeletal frame shift because his right leg is shorter than his left leg. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Asbestosis There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestosis or other asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discusses the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10-to-45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the record shows that the RO complied with M21- 1 procedures. The RO sent the appellant a letter in November 2002 requesting dates and places that the veteran was exposed to asbestos in service, the names of the devices that emitted the asbestos while in service, his military occupational specialty (MOS) at the time of exposure, his organization and rank at the time of each exposure, his complete employment history pre- and post service, his complete medical history, and a detailed description of activities during the period of exposure. In February 2003, the veteran submitted a statement that he lived for three years in military barracks that were built during World War II and that asbestos was the only insulation during that period. The veteran reported that asbestos covered the pipe in the latrine and also insulated the entire barracks. The veteran did not provide his MOS, but his service records indicate that during service he was a general clerk and a clerk typist. The veteran did not provide a complete employment history. However, the RO noted in the July 2003 SOC that a review of the claims file indicated that the veteran took a welding and fabrication course and worked with a glass company for approximately two years; that he was a welder and owned a welding rig and did work in his spare time; that he worked as a dry wall finisher and worked mostly in construction-type work; and that he last worked in August 1997 as a dry wall finisher and he owned a salvage company at one time. With respect to the RO's request for a complete medical history, the Board notes that in his application for compensation, the veteran noted that he had not been treated for asbestosis but included as a medical facility N & M, Inc. and provided an address. The RO sent two requests, in March and June 2003, for medical records to N & M, Inc. No evidence was received from N & M, Inc. In February 2004 the veteran submitted part of a medical report (pages 1 and 2 were missing) which indicates that the veteran's pulmonary function studies performed in February 2003 indicate a restrictive pattern and that chest x-rays performed in December 2002 was consistent with pulmonary asbestosis and asbestos-related pleural disease secondary to the veteran's occupational exposure to asbestos history. The impression was history of significant exposure to asbestos. After careful review, the Board finds that there is no persuasive evidence of record that the veteran was exposed to asbestos during active duty service. There is absolutely no objective evidence that the buildings the veteran lived in while in service were made of a material which included asbestos, and the service records do not show that the veteran had a major occupation typically involving exposure to asbestos. M21-1, Part VI, 7.21(b)(1); see VAOPGCPREC 4- 2000. Moreover, the only medical opinion of record indicates that the veteran's asbestosis was secondary to the veteran's occupational exposure to asbestos history; and the Board notes that record is deficient with regard to the veteran's entire occupational history. In fact, that medical opinion comes at the end of a four-page report of which pages one and two were removed prior to submission to VA. In short, the record does not show that the veteran was exposed to asbestos in service. Without persuasive evidence of exposure to asbestos during active duty service, there is no basis for awarding service connection for asbestosis. Cervical Spine Disability With respect to entitlement to service connection for a cervical spine disability, the first question that must be addressed is whether incurrence of a cervical spine disability is factually shown during service. The Board concludes it was not. The service medical records are absent complaints, findings or diagnoses of cervical spine problems during service, although there was one instance in November 1975 when the veteran was diagnosed with epididymitis after complaining of pains in his chest, stomach, back and of being constipated. On the clinical examination for separation from service, the veteran's spine was evaluated as normal; and on the Report of Medical History completed in conjunction with his separation examination, the veteran denied ever having frequent or severe headaches, arthritis, or recurrent back pain. Thus, there is no medical evidence that shows that the veteran suffered from a cervical spine disability during service. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1131 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Arthritis can be service-connected on such a basis if it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. However, in this case, the first showing of arthritis was not until many years after the appellant's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Such evidence is lacking here. The earliest evidence of cervical spine problems is documented in September 1988. In light of the lack of any complaints or findings of a cervical spine disability between 1975 and 1988, service connection is not warranted under 38 C.F.R. § 3.303(b). The Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or contracted a disease in service which resulted in a chronic cervical spine disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing cervical spine complaints, symptoms, or findings for many years after the period of active duty is itself evidence which tends to show that cervical spine disorder did not have its onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). When a disease is first diagnosed after service, service connection can nevertheless be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the appellant clearly has a current disability. The November 1999 VA examination diagnosed multilevel degenerative disc disease of the cervical spine. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. No medical professional has ever related this condition to the appellant's military service. In fact, the veteran's treating chiropractor, Dr. PEV, stated the veteran sustained permanent residuals secondary to congenital aberration of the cervical spine. Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted. VAOPGCPREC 82- 90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985). The VA General Counsel's opinion indicated that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82- 90. The current medical evidence of record does not show a relationship between the veteran's current cervical spine disability and his active duty service. In fact, the medical evidence of record suggests that his current condition is the result of a congenital aberration (congenital defect), and there is no probative medical evidence to show aggravation or a superimposed disease or injury during active duty service. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the appellant's claims that his current disorders are related to service. There is not an approximate balance of evidence. There is evidence not favorable to the claims that are of more probative value than the favorable evidence, and it is not error for the Board to favor certain evidence. The weight to be accorded the medical evidence must be determined by the quality of it and not by quantity. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. The VCAA notice requirements have been satisfied by virtue of letters sent to the claimant in October 2001, August and November 2002. Those letters advised the veteran what information and evidence was needed to substantiate the claims decided herein and of his/her and VA's respective duties for obtaining evidence. Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was specifically told that it was ultimately his responsibility for providing the information or evidence to support the claim. The claimant has not alleged that VA failed to comply with the notice requirements of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In addition, by virtue of the rating decision on appeal, the statement of the case (SOC), and the supplemental SOC (SSOC), he was provided with specific information as to why these particular claims were being denied, and of the evidence that was lacking. He was also supplied with the complete text of 38 C.F.R. § 3.159(b)(1) in the SOC. The RO's 2001 and 2002 letters did not specifically tell the claimant to provide any relevant evidence in his or her possession. However, he was otherwise fully notified of the need to give to VA any evidence pertaining to the claims. There is no allegation from the claimant that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. When considering the notification letters, the rating decision on appeal, the statement of the case (SOC), and the supplemental SOC (SSOCs), as a whole, the Board finds that he was aware that it was ultimately his responsibility to give VA any evidence pertaining to these claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In concluding that the VCAA notice requirements have been satisfied, the Board has relied on communications other than the RO's formal VCAA notice letters to the appellant. However, what the VCAA seeks to achieve is to give the claimant notice of the elements discussed in Pelegrini II. Once that is done-whether by a single notice letter or via more than one communication-the essential purposes of the VCAA have been satisfied. Here, because each of the four content requirements of a VCAA notice has been met, any error in not providing a single notice to the appellant covering all content requirements was harmless. See, e.g., 38 C.F.R. § 20.1102 (2004); Mayfield, supra. The Board also notes that the Court's decision in Pelegrini II, held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Board notes that the 2001 notice which preceded the March 2002 rating decision and the November 2002 notice which preceded the February 2003 rating decision satisfy the timing element of the Pelegrini decision for the veteran's claim on appeal. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The Board also concludes VA's duty to assist has been satisfied. The file contains post-service private and VA treatment records, as well as records from the Social Security Administration. The claimant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 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, as defined by law. The claimant was afforded medical examination in November 1999 which diagnosed multilevel degenerative disc disease of the cervical spine. However, absent a minimal showing by competent evidence that the veteran's asbestosis is related to event(s) in service, VA has no duty to obtain medical opinion for this issue. Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). VA satisfied its duties to inform and assist the claimant at every stage of this case. Therefore, he is not prejudiced by the Board considering the merits of the claims in this decision. ORDER Entitlement to service connection for asbestosis is denied. Entitlement to service connection for a cervical spine disability is denied. REMAND With respect to the issue of entitlement to service connection for venereal warts, the Joint Motion of the parties noted, in pertinent part, as follows: Remand is required in this case because the Board's decision failed to provide an adequate statement of reasons and bases for its denial of the appellant's claim for service connection for venereal warts. The Board found that the appellant "was diagnosed with a venereal disease prior to entering service, and there is no evidence showing that treatment for venereal warts during service was precipitated by trauma or conditions of service." (BVA Decision at 4). However, the parties note that the term "venereal disease" encompasses a number of sexually transmitted diseases, and genital or venereal warts, which are caused by several types of human papilloma virus, do not necessarily appear to be related to gonorrhea, for which the causative organism is Neisseria gonorrhoeae. The provisions of 38 C.F.R. §38 U.S.C. § 5103A(d) state that the duty to assist shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Venereal warts were not noted on the appellant's entrance examination, and he was treated for venereal warts in service in September and October 1975. (BVA Decision at 9). Thus, on remand the Board should direct the VARO to provide the appellant with a VA examination, to include an opinion as to the etiology of the appellant's venereal warts, and whether that condition may be related to service. See 38 C.F.R. § 3.159(c)(4)(i). On completion of that development the Board should on readjudication of the case, discuss the applicability of the presumption of soundness to the appellant's claim. See 38 C.F.R. §38 U.S.C. § 1111; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Accordingly, the case is hereby REMANDED for the following actions: The veteran should be afforded the appropriate VA examination. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should render an opinion as to whether the veteran currently has venereal warts and, if so, discuss the etiology and onset date of the condition. Specifically, the reviewer is requested to provide an opinion as to whether it is at least as likely as not that the veteran's venereal warts are related to the episodes documented during the veteran's active duty service. If any such residuals of venereal disease preexisted military duty, did such undergo a permanent increase in severity during military duty beyond natural progression of underlying disease process? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. After ensuring that any actions needed to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs