Citation Nr: 0724001 Decision Date: 08/03/07 Archive Date: 08/15/07 DOCKET NO. 04-01 647 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back injury. 3. Entitlement to service connection for asbestos exposure. 4. Entitlement to service connection for radiation exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from February 1958 to April 1962. This matter comes to the Board of Veterans' Appeals (Board) from a January 2003 rating decision by which the RO, inter alia, denied entitlement to the benefits sought herein. In March 2007, the veteran testified at a hearing before the undersigned that was held in San Antonio. FINDINGS OF FACT 1. The veteran is not shown to be suffering from PTSD. 2. A low back injury is not shown to be related to the veteran's active duty service. 3. The veteran is not shown to be suffering from an asbestos-related disability. 4. The veteran is not shown to be suffering from a radiation-related disability. CONCLUSIONS OF LAW 1. PTSD is not due to disease or injury that was incurred in active duty service. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2006). 2. A low back injury is not due to disease or injury that was incurred in active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). 3. Alleged asbestos exposure is not due to disease or injury that was incurred in active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). 4. Alleged radiation exposure is not due to disease or injury that was incurred in active duty service. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under VCAA, VA is required to advise a 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 CFR § 3.159(b)(1) (2006). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (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. In addition, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In this case, in November 2002 and April 2005 letters, the RO notified the veteran of the information and evidence needed to substantiate and complete his claims and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also advised the veteran to identify any additional information that he felt would support his claims and to submit any relevant evidence in his possession. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). The Board acknowledges that the content of the VCAA notice provided to the veteran in this case may not have been sufficient to comply with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as interpreted by the Court in Dingess/Hartman. The Board finds, however, that any such deficiency is harmless error and does not result in prejudice to the veteran. For example, element (1), veteran status, has been clearly established and is not at issue in this case. As explained above, the veteran has received appropriate notice as to elements (2) and (3). With respect to elements (4) and (5), degree of disability and effective date, the Board finds that such matters are rendered moot in light of the Board's decision below. The claims are denied, and no disability ratings or effective dates will be assigned. In summary, the evidence does not show that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. Therefore, the Board finds that to decide the appeal at this time would not be prejudicial to the veteran. Under VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, the veteran's service medical records are on file as are service personnel records and post-service VA medical records. The record contains a copy of a VA medical examination report conducted in furtherance of the veteran's claim of entitlement to service connection for a back injury. Examinations regarding the other issues on appeal need not be provided. The Board's rationale for such conclusion is provided below. There is no indication that further assistance need be carried out. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Standard of Review When there is an approximate balance of positive and negative 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 the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Law and Regulations Service connection will be granted if it is shown that the veteran suffers from 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. § 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.304(f). 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. 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). 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. 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. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). Diseases presumptively service connected for radiation- exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo- alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that colon cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). A claim of service connection for a disability must be accompanied by medical evidence establishing that the claimant currently has a claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes). Discussion PTSD The record contains no diagnosis of PTSD. The record reflects, however, that the veteran is receiving psychotropic medication for depression although a May 2004 depression screening revealed no depression. In order for service connection to be granted, the record must reflect a currently existing disability. 38 C.F.R. § 3.303; Degmetich, supra. Because the veteran is not shown to be suffering from PTSD, service connection for that condition is denied. Id.; 38 C.F.R. § 3.304. The Board observes that the veteran believes that he is suffering from PTSD resulting from witnessing the deaths of other service members aboard the USS Forrestal. The Board cannot credit the veteran's assertions in this regard because he is not shown to possess any relevant medical or psychological expertise. 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). The veteran is not competent to render diagnoses and is certainly not competent to offer opinions regarding the etiology of disabilities. The Board observes that it need not make any determination regarding the credibility of the veteran's alleged PTSD- inducing stressors because absent a diagnosis of PTSD, service connection for that condition cannot be granted. 38 C.F.R. §§ 3.303, 3.304; Degmetich, supra Normally, under VCAA, VA is required to seek a medical opinion to assist claimants in establishing claims for VA benefits. 38 U.S.C.A. § 5103A(d). A medical opinion, however, need only be obtained if (1) there is competent evidence of a current disability, and (2) evidence that the disability or symptoms may be associated with service, but (3) the case does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id. Because there is no evidence that the veteran is suffering from PTSD, an examination need not be provided. This is a case where the preponderance of the evidence weighs against the veteran's claim, as there is no competent evidence in its favor. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. Low back injury The service medical records reflect that the veteran suffered a back injury in 1957, before service, but that he had no difficulty since. The records do not reflect an actual low back disability on enlistment. In September 1958, the veteran sought treatment for a backache, general malaise, and dizziness. The examiner noted that the veteran had gone horseback riding the day before and that there was an old history of a spinal injury that resulted in backaches. Physical examination revealed mild tenderness of the low back area and suprapubic tenderness. The veteran's urine was clear, and treatment consisted of bed rest and observation. He was discharged to duty and instructed to return for a urethral smear. In November 1959, the veteran reported a "couple of slipped discs in the back." The examiner noted limitation of flexion at L5, and light duty was ordered. In March 1960, the veteran voiced only mild back complaints while being treated for an unrelated condition. In July 1960, pursuant to complaints of a backache, lumbar strain was assessed. No low back disability was noted in the March 1962 separation medical examination report. In July 2005, the veteran was afforded a VA examination of the spine. The associated examination report is exceedingly thorough, and the examiner outlined the relevant medical history gleaned from the service medical records and subsequent medical records. Pursuant to a physical examination, the examiner diagnosed spondylosis at L5 without spondylolsthesis but with degenerative disc disease and facet atrophy but without lower extremity radiculopathy or spasm. The examiner opined that the veteran's current back condition was not the result of service or any in-service injury. Rather, the most likely etiology of the veteran's current low back condition included chronic overweight condition, chronic deconditioning, comorbidities, and post-service occupations and/or injuries. The veteran testified that his low back disability was due to heavy lifting in service. Initially, the Board observes that the veteran is not shown to be competent to render medical opinions upon which the Board may rely. Espiritu, supra. Thus, his opinion regarding the etiology of his low back disability does not constitute competent medical evidence. The competent evidence, on the other hand, reflects quite clearly that current low back problems are unrelated to service. As the competent evidence reveals no nexus between the current disability and service, service connection for a low back injury must be denied. 38 C.F.R. § 3.303. This is a case where the preponderance of the evidence weighs against the veteran's claim, as there is no competent evidence in its favor. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. Asbestos exposure The veteran contends that he was exposed to asbestos in service while stationed aboard the USS Forrestal. He asserts that he slept on the top bunk very close to pipes containing asbestos. He further alleges that he has to carry a handkerchief with him and states that it is due to asbestosis. The veteran, however, admitted that he had never been tested for asbestosis or diagnosed with such and indicated that he believed he suffered from it because others who had been in the Navy had asbestosis. As explained above, the veteran is not shown to be competent to render medical diagnoses upon which the Board may rely. Espiritu, supra. The record is completely silent as to asbestosis, and, indeed, there is no active cardiopulmonary disease. In the absence of any current disabilities emanating from alleged asbestos exposure, service connection for such must be denied. 38 C.F.R. § 3.303. The Board herein is making no determination as to whether the veteran was exposed to asbestos in service but reminds the veteran that asbestos exposure alone would not be sufficient for a grant of service connection. In order for service connection to be granted, a present disability must be shown. Id.; Degmetich, supra. In this case, no asbestos-related disability is apparent from the record. Normally, under VCAA, VA is required to seek a medical opinion to assist claimants in establishing claims for VA benefits. 38 U.S.C.A. § 5103A(d). A medical opinion, however, need only be obtained if (1) there is competent evidence of a current disability, and (2) evidence that the disability or symptoms may be associated with service, but (3) the case does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id. Because there is no competent evidence of an asbestos-related disability, a VA medical examination need not be provided. This is a case where the preponderance of the evidence weighs against the veteran's claim, as there is no competent evidence in its favor. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. Radiation exposure Service records reflect no radiation exposure, and current medical evidence does not point to any radiation-related disability. At his March 2007 hearing, the veteran testified that he had never been diagnosed with any disease or condition related to radiation or from any radiation residuals. He suggested, however, that he dealt with nuclear weapons during service. Because the veteran is not shown to be suffering from any radiation-related disability, service connection for radiation exposure is denied under all theories of entitlement. 38 C.F.R. §§ 3.303, 3.309, 3.311; Degmetich, supra. The evidence does not reflect any radiation exposure, but, as explained above, radiation exposure in itself is not a disability. The veteran cannot be compensated for exposure to radiation. Rather, compensation is due for disabilities resulting from such exposure. Normally, under VCAA, VA is required to seek a medical opinion to assist claimants in establishing claims for VA benefits. 38 U.S.C.A. § 5103A(d). A medical opinion, however, need only be obtained if (1) there is competent evidence of a current disability, and (2) evidence that the disability or symptoms may be associated with service, but (3) the case does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id. Because there is no competent evidence of a radiation-related disability, a VA medical examination need not be provided. This is a case where the preponderance of the evidence weighs against the veteran's claim, as there is no competent evidence in its favor. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. ORDER Service connection for PTSD is denied. Service connection for a back injury is denied. Service connection for asbestos exposure is denied. Service connection for radiation exposure is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs