Citation Nr: 0703758 Decision Date: 02/06/07 Archive Date: 02/14/07 DOCKET NO. 04-40 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for arthritis of multiple joints. 2. Entitlement to service connection for residuals of asbestos exposure, to include chronic obstructive pulmonary disease (COPD) and emphysema. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran INTRODUCTION The veteran served on active duty in the United States Navy from May 1951 to February 1955 and from August 1955 to July 1959. Procedural history This appeal arose from an August 2003 rating decision of the Department of Veterans Affairs Regional Office (RO) in Albuquerque, New Mexico which denied the veteran's claims of entitlement to service connection for arthritis of multiple joints and for a pulmonary disability, claimed to be a residual of asbestos exposure. Original jurisdiction over these claims resides in the RO in Portland, Oregon. In September 2006, the veteran presented testimony at a personal hearing which was chaired by the undersigned Veterans Law Judge (VLJ) at the Portland RO. A transcript of that hearing has been associated with the veteran's VA claims folder. Clarification of issue on appeal In the August 2003 rating decision which forms the basis for this appeal, the Albuquerque RO listed six issues pertaining to arthritis (involving bilateral hips, knees and ankles). The Portland RO, in the October 2004 statement of the case, condensed those six issues into one. Because the facts and law pertaining to all of the claimed joints is identical, the Board agrees with the RO. Issues not on appeal In January 2005, the veteran field a claim of entitlement o service connection for neuropathy of the hands and feet. That claim was denied by the Portland RO in an August 2005 rating action. The veteran did not disagree with that decision. That issue is therefore not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. The competent medical evidence of record indicates that the veteran's currently diagnosed arthritis of multiple joints is not related to cold exposure or any other incident of his naval service. 2. The competent medical evidence of record indicates that the veteran's currently diagnosed COPD and/or emphysema is not related to asbestos exposure aboard ship, or to any other incident of his naval service. CONCLUSIONS OF LAW 1. Arthritis of multiple joints was not incurred or aggravated in military service, and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 2. Residuals of asbestos exposure, to include COPD and/or emphysema, were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2006) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for arthritis of multiple joints (bilateral hips, knees and ankles). He contends that he was exposed to harsh winter weather aboard naval vessels and that such caused arthritis. The veteran also seeks service connection for a pulmonary condition, which he contends is due to exposure to asbestos in service. In the interest of clarity, the Board will first discuss certain preliminary matters and then proceed to analyze the claims and render a decision. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2006) [reasonable doubt to be resolved in veteran's favor]. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. As an initial matter, the Board observes that the veteran has been furnished VCAA letters in January 2003, May 2003, June 2003 and March 2006. The June 2003 letter in essence recapitulated previous VCAA notice, and the March 2006 VCAA letter further brought the veteran up to date. The Board's discussion will therefore focus on those two letters. To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). The June 2003 VCAA letter from the RO specifically notified the veteran that to support a claim for service connection, the evidence must show that there exists a current disability; that there was an injury or disease in service; and that there is a relationship between the current disability and the injury or disease in service. The letter specifically informed the veteran that "We . . . need medical evidence showing you have a disability caused by your [claimed asbestos exposure."; and "We also need medical evidence showing you have a disability caused by your [claimed cold] exposure. See the June 3, 2003 VCAA letter, page 1. Second, the RO must inform the claimant of the information and evidence VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). In the June 2003 VCAA letter, the veteran was informed that VA had already received the veteran's service medical records, as well as VA medical treatment records from the Portland VAMC. This letter also notified the veteran that VA would assist him by providing a medical examination. [The medical examination in question was completed in June 2003.] The March 2006 VCAA letter informed the veteran "We will get any Federal records you tell us about." Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). The June 2003 VCAA letter asked the veteran to provide information concerning non-VA medical treatment so that the RO could request such medical records on his behalf. See the June 2003 VCAA letter, page 2. The veteran was also requested to furnish additional information concerning his in-service cold exposure and exposure to asbestos, which he did. The March 2006 VCAA letter in essence asked the veteran to tell the RO about any recent evidence concerning his claims. That letter informed the veteran that "you are responsible for getting any private records you identify", although we will try to help you if you ask us." See the March 20, 2006 VCAA letter, page 2. Finally, the RO must request that the claimant provide any evidence in his possession pertaining to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2006). The veteran was specifically advised by the letter sent to him in March 2006 that he should inform the RO "if you have any information or evidence that you have not previously told us about or given to us." This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. See the March 20, 2006 VCAA letter, page 2. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. In Dingess v. Nicholson, 19 Vet.App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for service connection, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the first element, veteran status, has been established. The second and third elements, current existence of a disability and relationship of such disability to the veteran's service, were the subject of the June 2003 VCAA letter, as is described above. Elements four and five, degree of disability and effective date, are moot because service connection has never been granted (and as explained below is not now being granted by the Board). In any event, the veteran received complete Dingess notice via the March 20, 2006 letter, which specifically referenced Dingess. Based on this procedural history, the Board finds that the veteran was notified properly of his statutory rights. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA 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. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records as well as post-service medical records. As was noted above, the veteran was accorded a VA examination in June 2003. The veteran and his representative have not identified any outstanding evidence. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the PTSD claim has been consistent with the provisions of the VCAA. The Board adds that general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2006). The veteran engaged the services of a representative, was provided with ample opportunity to submit evidence and argument in support of his claim, and was given the opportunity to present testimony at a personal hearing which was chaired by the undersigned VLJ at the RO in September 2006. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. 1. Entitlement to service connection for arthritis of multiple joints. Pertinent Law and Regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2006). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2006); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2006). Analysis In order to establish service connection for the claimed disorder, 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to element (1), current disability, degenerative joint disease of multiple joints was first noted in the medical records in July 2000. The June 2003 VA examiner diagnosed widespread diffuse degenerative joint disease or arthritis involving the hips, knees and ankles. Element (1) is therefore met. Concerning element (2), in-service disease or injury, the Board will separately discuss disease and injury. As for disease, there is no evidence of arthritis in service or within the one year presumptive period after service. As noted immediately above, arthritis was not noted in the medical records until decades after the veteran left naval service. Concerning injury, the only injury alleged by the veteran is exposure to cold while in service. Specifically, he has described how he was exposed to harsh conditions while aboard a minesweeper operating in the waters offshore Korea during the Korean Conflict. In support of his claim, he has submitted photographs, which are not identified with any specificity but which purport to be, and in fact appear to be of ice coating a naval vessel. The Board is aware that the veteran's service medical records do not indicate any frostbite or for that matter any other symptoms associated with exposure to cold temperature. Nonetheless, for the purposes of this decision, the Board will accept the veteran's statements concerning exposure to cold aboard ship. Element (2) is therefore satisfied to that extent. Turning to crucial element (3), medical nexus, there is only one competent medical opinion in the file, that of the June 2003 VA examiner. After examination of the veteran, the examiner concluded that there were no physical signs of cold injury. The examiner further concluded that more probable causes of the veteran's arthritis were post-service occupational exposures, obesity and age [the veteran was 69 years of age at the time of the examination. There is no competent medical opinion to the contrary. To the extent that the veteran contends that his arthritis is a result of in-service exposure to cold, it is well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. As was described in the VCAA discussion above, the veteran has been accorded ample opportunity to provided medical evidence in support of his claim [i.e., medical nexus evidence]. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a veteran's responsibility to support a claim of entitlement to VA benefits]. The Board observes that the veteran has appears to indicate that he had had joint problems continually after service. See the September 2006 hearing transcript, page 9. As discussed in the law and regulations section above, service connection may be considered if there has been continuous symptomatology after service. See 38 C.F.R. § 3.303(b) (2006). However, as discussed above there is no objective medical evidence of arthritis in service or for decades thereafter. Supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Continuity of symptomatology after service is therefore not demonstrated. In summary, for reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the veteran's claim. The benefit sought on appeal is accordingly denied. 2. Entitlement to service connection for residuals of asbestos exposure, to include chronic obstructive pulmonary disease (COPD) and emphysema. The veteran seeks service connection for a pulmonary disability, which he contends is a residuals of asbestos exposure aboard ship in service. Relevant law and regulations The law and regulations generally pertaining to service connective have been set out above and will not be repeated. Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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 a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See also VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). Analysis The Board's analysis will follow the Hickson pattern, described above. With respect to current disability, the medical evidence of record is somewhat ambivalent as to whether any pulmonary disability in fact exists. X-ray studies have demonstrated slight pleural thickening. The June 2003 VA examiner indicated that mild chronic COPD or emphysema could be present. For the purposes of this decision, the Board will assume that element (1), current disability, has been met. The Board adds, however, that as noted by the June 2003 VA examiner x-ray studies have identified no specific artifactual residuals of asbestos exposure. As for element (2), there is no evidence of COPD or emphysema in service, although the veteran was diagnosed as having pneumonia in June1951. The veteran's contention, in any event, is that he was exposed to asbestos aboard ship. The Board has no reason to doubt the veteran's contentions in light of the provisions of M21-1, described in the law and regulations section above. The veteran served aboard a World war II era minesweeper, and VA has recognized that such vessels were ridden with asbestos. Element (2) has therefore also been met. As with the first issue on appeal, the critical element is element (3), medical nexus. Also as with the first issue on appeal, the only competent medical nexus opinion is that of the June 2003 VA examiner, and it is against the veteran's claim. The June 2003 VA examiner indicated that x-rays showed no evidence of residuals of asbestos exposure. The examiner stated that it was less likely than not that any lung problems were due to his military service. Rather, the examiner indicated that the veteran's history of cigarette smoking may have been responsible for his chronic morning cough, wheezing and shortness of breath. There is no competent medical evidence to the contrary. As indicated above, the veteran himself cannot supply the required medical nexus evidence. See Espiritu, supra. Element (3) has not been met, and the veteran's claim fails on that basis. The Board further observes in passing that the veteran does not appear to contend that the only medically identified cause of his lung problems, tobacco use, was related to his naval service. In any event, service connection for diseases arising out of the us of tobacco products is specifically precluded by law. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2006). In summary, for reasons discussed above the Board concludes that a preponderance of the evidence is against the veteran's claim. The benefits sought on appeal are accordingly denied. ORDER Service connection for arthritis of multiple joints is denied. Service connection for residuals of asbestos exposure, to include chronic obstructive pulmonary disease and emphysema, is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs