Citation Nr: 0732502 Decision Date: 10/16/07 Archive Date: 10/26/07 DOCKET NO. 06-24 737 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as a result of asbestos exposure. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from November 1951 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 RO decision, which denied claims for service connection for COPD and bilateral hearing loss. In April 2007, a Travel Board hearing was held before the undersigned Veterans Law Judge at the RO in North Little Rock, Arkansas. A transcript of that proceeding has been associated with the claims folder. The Board notes that, following this hearing, the veteran was afforded 60 days to submit additional evidence. In June 2007 and August 2007, the veteran submitted additional evidence to the RO, which was forwarded to the Board for review. In August 2007 and September 2007, he submitted waivers of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. The issue of bilateral hearing loss 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. FINDING OF FACT The veteran's currently diagnosed COPD is not related to a disease, injury or claimed inservice asbestos exposure in service. CONCLUSION OF LAW The veteran's COPD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. A letter dated in May 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2006); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The May 2005 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for COPD, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and relevant VA medical records are in the file. All records identified by the veteran as relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With a service connection claim, 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. See 38 C.F.R. § 3.159(c)(4)(i) (2006). The veteran was provided a VA examination in May 2006, which addressed the nature and etiology of the veteran's COPD. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006 II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §3.303(b) (2006). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (2006). In order to establish direct service connection for a disorder, 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 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The veteran is seeking service connection for COPD. He essentially contends that his COPD is the result of exposure to asbestos during in service. Specifically, he alleges he was exposed to pipes wrapped in asbestos running through the ships upon which he served. See Hearing Transcript, April 2007. He claims he was given no mask or protection of any form and was directed to clean these asbestos-covered pipes. Id. In addition, he claims to have been exposed to asbestos while in his barracks and while working in a shipyard in Baltimore, Maryland for three months. Id. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: 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, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). The veteran claims that he first began noticing shortness of breath after a heart attack in 1995. See Hearing Transcript, April 2007. The record reflects that he was diagnosed with obstructive pulmonary disease with interstitial lung changes by a private physician in 2004, many years after service separation. See Arkansas Methodist Medical Center treatment records, October 2004. In May 2006, the veteran underwent a VA compensation and pension examination. The examiner diagnosed the veteran with a mild obstructive lung disease. It was specifically noted that X-ray studies (performed in May 2006) did not reflect asbestos exposure. In addition, the examiner specifically stated the veteran's shortness of breath and lung disease were not likely secondary to asbestos exposure. There is no other evidence to the contrary. After consideration of all the evidence, the Board finds that the veteran's current COPD is not related to an incident of service, including exposure to asbestos. The Board notes that the veteran has claimed to work in a shipyard, which is among the occupations listed as having a higher incident of asbestos exposure in the M21-1 MR. Even assuming he did have such exposure, there is no persuasive medical evidence of record that establishes that current COPD is related to asbestos exposure. Rather, the most probative medical evidence on file (i.e. a May 2006 VA compensation examination) discounts a link between the veteran's current lung disease and any asbestos exposure. Further, there is no competent medical evidence directly linking COPD with military service. In this regard, it is noted that the veteran's service medical records do not reflect any respiratory problems, and the veteran does not contend otherwise. Rather, he has indicated his respiratory problems first manifested in the mid 1990s. With respect to the veteran's own statements and his hearing testimony, the Board finds that his assertions alone cannot be dispositive of the issue. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain or his duties while on a ship or in a shipyard. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The veteran is competent to report what comes to him through his senses, but he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Although the Board is sympathetic to the veteran's health difficulties, the fact is that no competent medical evidence of record exists linking his current disability to his active duty service or exposure to asbestos. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for COPD as a result of exposure to asbestos must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for COPD, claimed as a result of asbestos exposure is denied. REMAND After a thorough review of the veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of this claim. Specifically, this issue must be remanded in order to obtain additional VA Medical Center (VAMC) treatment records and in order to schedule the veteran for a VA audiological examination to ascertain the nature and etiology of any bilateral hearing loss. The veteran alleges that he currently suffers bilateral hearing loss as the result of inservice exposure to motor and aircraft noise. See Travel Board Hearing Transcript, April 2007. In October 1966, on a periodic physical examination, audiometric testing reflected the follow findings: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) 5 (15) 5 (10) LEFT 5 (20) 5 (15) 5 (15) 5 (15) 15 (20) The aforementioned table reflects ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in adjacent parentheses. On separation examination, in June 1973, results of audiometric testing were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 25 LEFT 10 25 15 20 20 The aforementioned table reflects ISO (ANSI) measurements. A comparison between the veteran's hearing acuity during active duty service (i.e., in October 1966) and on separation examination yields conflicting findings. Further, despite the indication of some bilateral hearing loss in the veteran's service medical records (see Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the claims folder contains no evidence of a current disability. The veteran states that he sought treatment for his bilateral hearing loss at an Air Force Base in October or November of 1989 and then at the Memphis VAMC shortly thereafter. See Travel Board Hearing Transcript, April 2007. These medical records are not associated with the veteran's claims folder. VA has an obligation under the Veterans Claims Assistance Act (VCAA) to associate all relevant records in VA's possession with the claims file of a veteran. 38 C.F.R. § 3.159 (2006). Therefore, the case must be remanded in order to locate any outstanding VAMC records from the Memphis facility. In addition, the veteran should be contacted and asked to provide the name of the Air Force base where he received treatment for his ears from October or November of 1989; related records must be located. Upon receipt of any additional records, the veteran must be scheduled for a VA audiological examination. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. Accordingly, the case is REMANDED for the following action: 1. Please send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence necessary to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Obtain the veteran's medical records from the VAMC in Memphis, Tennessee for any treatment concerning his bilateral hearing loss since service to the present, particularly including any records since 1989. 3. The veteran should be requested to identify the Air Force base where he received treatment for his ears in October or November of 1989; following proper identification, any related records should be obtained. 4. Schedule the veteran for a VA audiological examination. The claims file should be provided to the physician for review, and the examiner should note that it has been reviewed. After reviewing the file, the physician should render an opinion as to whether the veteran has current hearing loss (of either or both ears). If so, an opinion should be provided as to whether it is at least as likely as not that current hearing loss (of either or both ears) had its onset during service or within one year of service discharge. It would be helpful if the physician 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. 5. Then, the RO/AMC should readjudicate the claim. In the event that the claim is not resolved to the satisfaction of the veteran, he should be provided a supplemental statement of the case, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The veteran 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). No further action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran 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 veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2006). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (Supp. 2006). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs