Citation Nr: 0733413 Decision Date: 10/24/07 Archive Date: 11/02/07 DOCKET NO. 03-11 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to service connection for hypertension claimed as due to penicillin reaction. 3. Entitlement to service connection for a disability manifested by an irregular heart beat claimed as due to penicillin reaction. 4. Entitlement to service connection for a gastrointestinal disorder to include ulcers and gastroenteritis. 5. Entitlement to service connection for a disability manifested by reaction to penicillin. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Palmer, Associate Counsel INTRODUCTION The veteran had active service from November 1951 to September 1955. This matter returns to the Board of Veterans' Appeals (Board) following Remands issued in February 2004 and September 2005. This matter was originally on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied service connection for respiratory problems, hypertension due to penicillin reaction, irregular heartbeat due to penicillin reaction, ulcers/gastroenteritis, reaction to penicillin, and bilateral hearing loss. The Board notes that the veteran's claim for bilateral hearing loss was previously denied in the September 2005 Board decision. Thus, that issue is no longer on appeal and will not be discussed in this decision. Based on an August 2007 motion, this appeal has been advanced on the docket because of the veteran's advanced age. 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claims, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The competent medical evidence of record does not show that any of the veteran's currently diagnosed chronic respiratory disorders are related to active military service. 3. The competent medical evidence of record does not show that the veteran's currently diagnosed hypertension is related to service or manifested to a compensable degree within a year of discharge. 4. The competent medical evidence of record does not show that the veteran currently suffers from a disability manifested by an irregular heartbeat as due to his active military service. 5. The competent medical evidence of record does not show that the veteran currently suffers from a gastrointestinal disorder related to his active military service. 6. The competent medical evidence of record does not show that the veteran currently suffers from a disability manifested by reaction to penicillin. CONCLUSIONS OF LAW 1. A respiratory disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 2. Hypertension claimed as due to penicillin reaction was not incurred in or aggravated by active military service nor may it be presumed to have incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 3. A disability manifested by an irregular heart beat claimed as due to penicillin reaction was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 4. A gastrointestinal disorder to include ulcers and gastroenteritis was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 5. A disability manifested by reaction to penicillin was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Board Remands and the Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007). As a preliminary matter, the Board notes that the veteran was not provided with adequate VCAA notice in this case prior to the June 2002 rating decision denying his claims. Although the veteran was sent a VCAA notice letter in April 2002, the Board previously found in its February 2004 Remand that the notice and duty to assist provisions of the VCAA had not been met because the veteran had not been informed that his claims (which had been denied in a March 1999 rating decision as not well-grounded) were being reconsidered by the RO in its June 2002 rating decision. The Board explained that that the veteran had been sent a VCAA notice letter in April 2002 after he had filed a claim seeking entitlement to service connection for hearing loss; however, the letter did not specify any disabilities being considered by the RO at that time. Nonetheless, any defect with respect to the timing of the notice has been remedied as the veteran was sent adequate VCAA notice in February 2004 and October 2005 and his claims were subsequently readjudicated in March 2005 and December 2005, as will be explained below. In correspondence dated in February 2004, the RO advised the veteran that VA was responsible for obtaining relevant records from any Federal agency and would make reasonable efforts to obtain relevant records not held by any Federal agency with respect to his claims. The RO also asked that the veteran provide VA with any evidence or information that he may have pertaining to his appeal. The RO further advised the veteran that he may lose money if he took more than one year to submit the requested information and evidence and his claim was granted because VA would not be able to pay him back to the date he filed his claims. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (holding that VCAA notice requirements include the elements of effective date and degree of disability). Moreover, the RO informed the veteran of what the evidence must show to establish entitlement to service-connected compensation benefits as the relevant enclosure was noted to have been sent along with the VCAA letter and the veteran has not indicated that he did not receive such notification. The Board notes that the veteran has not been advised regarding the degree of disability with respect to his claims. Nonetheless, such notice defect constitutes harmless error in this case as the veteran's claims are being denied for reasons explained in greater detail below and, consequently, no disability ratings will be assigned. The Board further observes that the RO provided the veteran with a copy of the June 2002 rating decision, the February 2003 Statement of the Case (SOC), and the Supplemental Statements of the Case (SSOCs) dated in March 2005 and December 2005, which included a discussion of the facts of the claims, pertinent laws and regulations, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. The RO also sent a follow-up duty to assist letter in October 2005. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the veteran with a medical examination and nexus opinions with respect to his claims in November 2005. The Board also observes that the veteran's service medical records, DD Form 214, and VA treatment records from September 1998 to March 2002 are of record. The Board further notes that the RO attempted to verify the use of asbestos aboard on the U.S.S. Boxer, the naval ship on which the veteran was stationed, as will be explained below. The Board notes that the veteran told the November 2005 VA medical examiner that he had received treatment at Southwest Medical Center for gastrointestinal problems (i.e., bowel obstruction that led to his having a third of his intestines removed) in 1995 and respiratory problems (acute exacerbation of asthma versus acute bronchitis) in 2005 and such records are not contained in the claims folder. However, the veteran merely reported that he received treatment for such problems and did not indicate that a medical examiner had linked a respiratory or gastrointestinal disorder to service. It is also noted that the November 2005 VA examiner considered the veteran's reported history when rendering his opinion and conducting his physical examination of the veteran. The examiner determined that the veteran did not currently suffer from a gastrointestinal disorder and his respiratory problems were not related to service. Moreover, records from 1995 would not tend to show that the veteran currently suffers from a gastrointestinal disorder. Thus, a remand to obtain the treatment records from Southwest Medical Center is not necessary and would only cause further delay in the adjudication of the veteran's claims. The veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. The Board further finds that the RO substantially complied with its February 2004 and September 2005 Board Remands. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board will proceed with appellate review. II. Legal Criteria and Analysis Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). 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) (2007). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a cardiovascular disease becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). This presumption is rebuttable by affirmative evidence to the contrary. Id. In regard to the veteran's claimed asbestos exposure, the Board observes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations. VA, however, has issued a circular on asbestos-related diseases that provides some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) (DVB Circular). The information and instructions from the DVB Circular are incorporated in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, 7.21. The provisions of M21-1, Part VI, par. 7.21(a), (b), & (c) are not substantive in nature, but relevant factors discussed by them must be considered by the Board in all decisions in order to fulfill the Board's obligation under 38 U.S.C.A § 7104(d)(1) to provide an adequate statement of the reasons and bases for a decision. See VAOPGCPREC 4-00; Ennis v. Brown, 4 Vet. App. 438, vacated at 4 Vet. App. 523, new decision issued at 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The first three sentences of M21-1, Part VI, par. 7.21(d)(1) are substantive in nature and must have been followed by the agency of original jurisdiction or the appeal must be remanded for this development. VAOPGCPREC 4-00. Additionally, while not discussed in VAOPGCPREC 4-00, it is likely that factors enumerated at M21-1, Part III, par. 5.13(b) should be considered by the Board. The guidelines further provide that the latent period varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. M21-1, part VI, para. 7.21(a)(1). Finally, the guidelines provide that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The record reflects that the veteran has repeatedly asserted that his claimed disorders are related to his period of active military service. However, the veteran does not have the requisite medical expertise to diagnose his claimed disorders or render a competent medical opinion regarding their causes. Thus, competent medical evidence showing that his claimed disorders are related to service is required. Respiratory Disorder The veteran essentially contends that his current respiratory disorder is related to in-service asbestos exposure. A review of the medical evidence of record reveals that the veteran currently suffers from multiple chronic respiratory disorders. Most recently, the November 2005 VA medical examiner noted that the veteran had chronic obstructive pulmonary disease (COPD). It is additionally noted that the veteran's VA treatment records include diagnoses of asthma and note that the veteran has been prescribed albuterol, a medication used to treat asthma. The Board observes that the veteran does not contend and the service medical records do not show that he was treated for or diagnosed as having a chronic respiratory disorder in service. Indeed, the service medical records are absent of any findings of a chronic respiratory disorder in service. Furthermore, the earliest finding of asthma of record is noted in 1998, approximately 43 years after the veteran's discharge from service. The record further shows that COPD is first noted in November 2005, approximately 50 years after discharge. The Board additionally notes that there are no service records that document the veteran's exposure to asbestos during service. While the veteran's DD Form 214 notes that he served as a deck engineer aboard the naval ship, U.S.S. Boxer, the veteran's service medical records make no mention of asbestos. In addition, the National Archives and Records Administration (NARA) was unable to verify that asbestos was used aboard the U.S.S. Boxer during the veteran's period of active military service. In February 2004 correspondence, the RO requested from NARA records for the U.S.S. Boxer for the period 1945 to 1957 to determine whether there was any likelihood of asbestos exposure. In response, NARA noted in November 2004 correspondence that it was in custody of the deck logs of the U.S.S. Boxer from 1945 to 1957; however, the logs from that period would approximate nearly 8,000 pages and providing such a volume of documentation would not be practicable. NARA also explained that the deck logs of the U.S.S. Boxer would not provide any information pertaining to the use of asbestos or any other substance as the deck logs were intended to serve as a general record of the movements of the ship and were not intended to document all activities taking place on or around the ship. Furthermore, no competent medical evidence links the veteran's current chronic respiratory disorders to his active military service to include his claimed in-service asbestos exposure. The veteran's service medical records are absent of any findings of a chronic respiratory disorder or references to asbestos, as noted above. Moreover, the November 2005 VA medical examiner concluded that the veteran's COPD was not related to the veteran's period of service and his respiratory problems were not secondary to penicillin hypersensitivity after review of the claims folder and examination of the veteran. Alternatively, the examiner attributed the veteran's pulmonary problems to his obstructive sleep apnea secondary to his obesity and to his COPD which was either due to smoking or asthma. The veteran told the examiner that he had had problems with asthma as a child, the symptoms resolved when he was in service, and returned after discharge. The examiner specifically noted that the veteran's chest x-ray did not show any evidence that asbestos was responsible for the veteran's lung problems. It is noted that there is no medical opinion contrary to the one offered by the November 2005 VA examiner of record. Thus, the Board finds the November 2005 VA examiner's opinion dispositive in this case. As there is no evidence that the veteran's current respiratory disorders are related to active military service to include asbestos exposure and penicillin hypersensitivity, the Board finds that the preponderance of the evidence weighs against the claim and service connection for a respiratory disorder is not warranted. Hypertension Claimed as due to Penicillin Reaction A review of the medical evidence of record reveals that the veteran currently suffers from hypertension. Indeed, the November 2005 VA medical examiner diagnosed the veteran with hypertension based on his examination of the veteran and review of the claims folder. It is additionally noted that the veteran's VA treatment records from 1998 to 1999 include diagnoses of hypertension. Nonetheless, the competent medical evidence does not show that the veteran's current hypertension is related to service or that hypertension manifested to a compensable degree within a year of service. The service medical records are absent of any findings of hypertension and the earliest finding of hypertension of record is not noted until 1998, approximately 43 years after discharge. The veteran even told the November 2005 VA examiner that he was first diagnosed with hypertension in 1972, which is approximately 17 years after discharge. While it is noted that the service medical records show that the veteran has a hypersensitivity to penicillin, no competent medical evidence links the veteran's hypertension to such hypersensitivity or otherwise to the veteran's military service. Rather, the November 2005 VA medical examiner reviewed the record and found that there was no evidence that the veteran ever had an acute reaction to penicillin while in service. He added that even if the veteran had an acute reaction to penicillin, all the problems which happen are only acute and they do no leave any chronic sequela. He further noted that there was no evidence of any heart disease in service and concluded that the veteran's hypertension was not related to his active service. As there is no opinion to the contrary of record, the Board finds the November 2005 VA examiner's opinion dispositive in this case. In sum, the medical evidence of record does not show that the veteran's current hypertension is related to service or manifested to a compensable degree within one year of discharge. Therefore, the preponderance of the evidence weighs against the veteran's claim and service connection for hypertension is not warranted on either a direct or presumptive basis. Irregular Heart Beat Claimed as due to Penicillin Reaction There is no competent medical evidence to show that the veteran has a current disability manifested by an irregular heart beat related to his military service to include as due to a reaction to penicillin. Indeed, the service medical records are absent of any notations regarding an abnormal heart beat and the November 2005 VA medical examiner noted that there was no evidence of an irregular heart beat in service based on his review of the veteran's service medical records. The November 2005 VA medical examiner also concluded that there was no evidence that an irregular heart beat was secondary to penicillin hypersensitivity. Furthermore, there is no competent medical evidence that links a current disability manifested by an irregular heart beat to active military service or to the year following the veteran's discharge from active service. Thus, the preponderance of the evidence weighs against the veteran's claim and service connection for a disability manifested by an irregular heart beat is not warranted. Gastrointestinal Disorder to include Ulcers and Gastroenteritis The medical evidence does not show that the veteran currently suffers from a gastrointestinal disorder related to his active military service. While it is noted that the veteran's service medical records include an assessment of peptic ulcer with acute perforation on May 29, 1952 that was then changed to acute gastroenteritis due to food indiscretion on May 30, 1952, the November 2005 VA medical examiner wrote that there was no current evidence of any ulcers or gastroenteritis based on his review of the claims folder and examination of the veteran. The examiner also noted that the veteran did not have a gastrointestinal disorder, was not on any medication for a gastrointestinal disorder, and denied any gastrointestinal problems at the November 2005 VA examination. The Board further observes that there is no other medical evidence of record to show that the veteran has a current gastrointestinal disorder. In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of the evidence weighs against the veteran's claim and service connection for a gastrointestinal disorder to include ulcers and gastroenteritis is not warranted. Disability Manifested by Reaction to Penicillin While the Board observes that an undated service medical record notes that the veteran demonstrated a hypersensitivity to penicillin in service, there is no indication that he currently suffers from a disability manifested by reaction to penicillin. In November 2005, the veteran underwent a VA medical examination and the examiner noted at that time that there was no evidence that the veteran ever had an acute reaction to penicillin while in service based on his review of the record. He additionally wrote that even if the veteran had had an acute reaction to penicillin, all the problems which happen are only acute, and they do not leave any chronic sequela. He further found that there was no evidence that the veteran's hypertension or irregular heart beat or gastrointestinal problems or respiratory problems were secondary to penicillin hypersensitivity. Thus, the examiner did not find that any of the veteran's claimed disabilities were related to his in-service penicillin sensitivity. Furthermore, there is no competent medical evidence of a current disability related to the veteran's penicillin hypersensitivity or a penicillin reaction contained in the record. In the absence of such evidence, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of the evidence weighs against the veteran's claim and an award of service connection is not warranted. In reaching the above conclusions, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the veteran's claims and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to service connection for a respiratory disorder is denied. 2. Entitlement to service connection for hypertension claimed as due to penicillin reaction is denied. 3. Entitlement to service connection for a disability manifested by an irregular heart beat claimed as due to penicillin reaction is denied. 4. Entitlement to service connection for a gastrointestinal disorder to include ulcers and gastroenteritis is denied. 5. Entitlement to service connection for a disability manifested by reaction to penicillin is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs