Citation Nr: 0604699 Decision Date: 02/17/06 Archive Date: 02/28/06 DOCKET NO. 03-00 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for asbestosis, as a result of asbestos exposure. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active service from March 1959 to March 1963. This case comes to the Board of Veterans' Appeals (Board) from a rating decision rendered in June 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board remanded the veteran's claims in October 2004. The appeal has been returned to the Board for futher appellate action. FINDINGS OF FACT 1. All the evidence requisite for an equitable disposition of the veteran's claims has been developed and obtained, and all due process concerns as to the development of these claims have been addressed. 2. Claimed residuals of asbestosis and findings of chronic obstructive pulmonary disease (COPD) of unspecified etiology are first shown more than one year after the veteran's separation from service, and are not shown to be related to events, disease, or injury during military service. 3. A left shoulder disability of unspecified etiology is first shown more than one year after the veteran's separation from service, and is not shown to be related to events, disease, or injury during military service. 4. A right shoulder disability of unspecified etiology is first shown more than one year after the veteran's separation from service, and is not shown to be related to events, disease, or injury during military service. 5. Bilateral hearing loss of unspecified etiology is first shown more than one year after the veteran's separation from service, and is not shown to be related to events, disease, or injury during military service. CONCLUSIONS OF LAW 1. Claimed residuals of asbestosis and findings of COPD were not incurred or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005); M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. 2. A left shoulder disability was not incurred or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). 3. A right shoulder disability was not incurred or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2005). 4. Bilateral hearing loss was not incurred or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.385 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Also, certain disorders may be presumed to have been incurred during service when manifested to a compensable degree within a specified time (usually one year) following separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2005). Consideration for presumptive service connection for such diseases and disorders requires a minimum of 90 days of active service during a period of war or after December 31, 1946. In this case, the veteran's dates of verified active service indicate that he is entitled to be considered for presumptive service connection. Further, arthritis is included in the list of disorders from 38 C.F.R. §§ 3.307 and 3.309. In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease or injury incurred in service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2005). As an initial matter, in considering the veteran's service connection claims, the Board acknowledges the veteran's complaints -- in personal statements, the July 2003 hearing transcript, records from the Social Security Administration (SSA), and the VA as well as private treatment notes -- that he suffers from current residuals of a left shoulder disability, right shoulder disability, asbestosis, and bilateral hearing loss due to events during active service. These lay statements alone, however, cannot meet the burden imposed by 38 C.F.R. §§ 3.303, 3.307, and 3.309 with respect to the relationship between events during service and his current complaints. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (a)(2) (2005). Entitlement to Service Connection - Asbestosis There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR. The U.S. Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, topic 29. It lists some of the major occupations involving exposure to asbestos, including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases 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). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9,;see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In short, with respect to claims involving asbestos exposure, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. The veteran contends that he currently suffers from asbestosis, due to asbestos exposure that occurred while he was working in a ship's laundry room during an eight-month sea assignment in active service. After a review of the evidence, the Board finds that the record does not support his contentions, and that his claim for entitlement to service connection for asbestosis must fail. Service personnel records indicate that the veteran was a passenger for short time periods on various ships during active service with the USMC in March 1960, July 1960, September 1960, April 1961, and May 1961 for transport between North Carolina and Puerto Rico. The Board notes that the veteran's DD Form 214 as well as additional service personnel records reflect that military occupational specialties (MOS) included Rifleman, Fire Team Leader, Squadron Leader, Messman, Military Police, and Assistant Rifleman. In addition, in the July 2003 DRO hearing transcript, the veteran testified that he worked in the laundry below deck each night while on a documented assignment at sea from May 1962 to December 1962. Evidence of record, including the veteran's own statements, indicates that the veteran worked in construction as well as held a career as an electrician both prior to and following his period of active military service. In a March 1999 private treatment note as well as the July 2003 DRO hearing transcript, it was detailed that the veteran had been exposed to asbestos on multiple occasions both before and after active military service. However, the veteran further testified in July 2003 that he always wore a respirator during exposure to asbestos while working as an electrician after service. In this case, the Board finds that it is unclear from the veteran's service records whether he was exposed to asbestos during active service. Another question before the Board, is whether the veteran does, or does not, have a current diagnosis of asbestosis. Service medical records show no complaint, diagnosis, or treatment for any type of respiratory disability. Private treatment notes, dated from January to March 1999, showed findings of a recurrent right pleural effusion. A March 1999 private hospital discharge summary showed a discharge diagnosis chronic pleuritis and noted that thoracoscopy test results demonstrated serous pleural effusion suggestive of asbestos pleural disease. Additional private treatment notes and pulmonary function test reports dated in 1999 showed diagnoses of benign pleural effusions, asbestosis, and COPD. VA treatment notes dated in 2002 show a diagnosis of COPD and note past medical history of asbestos exposure. As discussed above, to establish service connection for the claimed disability, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Gutierrez v. Principi, No. 01-2105 (U.S. Vet. App. Dec. 23, 2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999). Even assuming that the veteran was exposed to asbestos during service and currently suffers from asbestosis as well as COPD, competent medical evidence of record does not indicate that there is a relationship between the veteran's claimed asbestos exposure in service and his current claimed disabilities of asbestosis and COPD. Consequently, competent medical evidence of record does not show a nexus between the claimed in-service asbestos exposure and the current claimed disabilities of asbestosis and COPD. As the preponderance of the evidence is against finding that the veteran's claimed disabilities of asbestosis and COPD developed due to alleged asbestos exposure during active service, the veteran's claim for service connection for asbestosis and COPD must be denied. As the Board finds that the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002). Entitlement to Service Connection - Left and Right Shoulder Disabilities The veteran contends that he currently suffers from left and right shoulder disabilities that were also incurred during active service and that service connection is warranted. After a review of the evidence, the Board finds that the record does not support his contentions, and that his claims for entitlement to service connection for left and right shoulder disabilities must fail. In this case, service medical records are void of any complaints, treatment, or diagnosis of a right shoulder disability. While a July 1971 service record showed complaints of left shoulder pain and findings of a bruised left shoulder, the veteran's March 1963 service separation examination report does not show that he suffered from any chronic, diagnosed left shoulder disability during active service. Further, a July 1962 service record indicated that x-rays of the veteran's shoulders were normal. Private treatment records and x-ray reports dated in May 1999 show complaints of bilateral shoulder pain, findings of marked limitation of shoulder movement, bilateral frozen shoulder, and minimal degenerative changes. Additional private treatment notes dated in March and July 1999 as well as VA treatment notes dated in 2004 showed complaints of bilateral shoulder pain as well as diagnoses of tenosynovitis of bilateral shoulders, osteoarthritis, and right shoulder arthritis. However, none of the competent medical evidence of record shows that the veteran suffers from left or right shoulder disabilities that are etiologically related to disease, injury, or events during his active service or that were incurred within one year after his separation from active service. In fact, in the May 1999 private treatment note, the physician indicated that the veteran had developed bilateral shoulder pain secondary to a nonservice-connected neck disability. In addition, records from SSA, which included private medical records dated from August to September 1998, detailed that that the veteran developed cervical spine and shoulder pain after a work-related injury. Based on the evidence discussed above, the competent medical evidence of record does not support a conclusion that the veteran suffers from left or right shoulder disabilities that are etiologically related to disease, injury, or events during his active service. As the Board finds that the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002). Entitlement to service connection for left and right shoulder disabilities is not warranted. Entitlement to Service Connection - Bilateral Hearing Loss Under 38 C.F.R. § 3.385, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2005). The veteran contends that he currently suffers from bilateral hearing loss as a result of in-service noise exposure, and that service connection for his bilateral hearing loss disability is appropriate. After a review of the evidence, the Board finds that the record does not support his contentions, and that service connection for bilateral hearing loss is not warranted. Service medical records do not show any complaint, treatment, or diagnosis of bilateral hearing loss. A March 1999 private treatment record shows a diagnosis of moderate hearing loss. Further, the claims file contains a private audiology evaluation report dated in July 2000 that included audiometric findings in graphic instead of numeric form. However, the Board is unable interpret the audiograms which are presented in graphic rather than numerical form. See Kelly v. Brown, 7 Vet. App. 471 (1995). Even assuming that the veteran meets the criteria under 38 C.F.R. § 3.385 to constitute a bilateral hearing loss disability for VA purposes, none of the competent medical evidence of record indicates that the veteran's current claimed bilateral hearing loss disability is related to noise exposure during his period of active service. In this case, the Board finds the medical evidence of record, which does not indicate that the veteran currently suffers from bilateral hearing loss related to in-service noise exposure, is more probative than the veteran's own lay statements. Statements from the veteran can be used only to provide a factual basis upon which a determination could be made that a particular injury occurred in service, not to provide a diagnosis or a medical opinion linking that in-service disease or injury to a current disability. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Based upon the evidence discussed above, the Board concludes that the evidence is insufficient to link the veteran's current claimed bilateral hearing loss with any claimed inservice noise exposure. Consequently, the veteran's claim of service connection for bilateral hearing loss must be denied. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and to Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. As discussed below, VA fulfilled its duties to inform and assist the veteran concerning these claims. Accordingly, the Board can issue a final decision because all notice and duty to assist requirements have been fully satisfied, and the veteran is not prejudiced by appellate review. In this case, a substantially complete application for the service connection claims was received in January 2002. Thereafter, in a rating decision dated in June 2002, the veteran's claims were denied. Both before and after that rating action was promulgated, VA provided notice to the veteran. Nevertheless, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Notice was provided by VA, and the content of the notice fully complied with the requirements of U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005), and Quartuccio v. Principi, 16 Vet. App. 183 (2002), as discussed below. Further, after the notice was provided, the case was readjudicated in an April 2005 supplemental statement of the case (SSOC). The veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial to the veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In February and March 2002 letters from the RO as well as a November 2004 letter from the Appeals Management Center (AMC), the veteran was notified regarding what information and evidence is needed to substantiate his claims, what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the claimant to submit evidence in his possession that pertains to the claims. Moreover, to the extent that the veteran was not specifically advised to submit any pertinent evidence in his possession by these letters, he was given the text of 38 C.F.R. § 3.159 in a November 2003 SSOC. Consequently, he was aware of this provision. VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) 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; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. The "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The letters from VA dated in February 2002, March 2002, and November 2004, complied with these requirements. As for VA's duty to assist a veteran, the veteran's available service medical records, VA outpatient and inpatient medical records, private treatment records, and records from SSA have been obtained and associated with the file. There is no indication that relevant (i.e., pertaining to treatment for the claimed disability) records exist that have not been obtained. VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims. In this case, the Board notes that VA examinations were not ordered to evaluate the veteran's claimed disabilities, as it was determined unnecessary after consideration of 3.159(c)(4) (2005). The Board finds that VA has done everything reasonably possible to assist the veteran. A remand or further development of these claims 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 veteran); 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 veteran are to be avoided). VA has satisfied its duties to inform and assist the veteran in this case. VA's efforts have also complied with the instructions contained in Remand from the Board dated in October 2004. See Stegall v. West, 11 Vet. App. 268 (1998). Further development and further expending of VA's resources is not warranted. Any "error" to the veteran resulting from this Board decision does not affect the merits of his claims or his substantive rights, for the reasons discussed above, and is therefore harmless. See 38 C.F.R. § 20.1102 (2005). There is no reasonable possibility that further assistance to the veteran would substantiate his claims. See 38 C.F.R. § 3.159(d) (2005). ORDER Entitlement to service connection for asbestosis is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs