Citation Nr: 0735386 Decision Date: 11/09/07 Archive Date: 11/26/07 DOCKET NO. 05-02 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection of residuals of asbestos exposure, to include chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection of lung disease, claimed as due to herbicide exposure. 3. Entitlement to service connection of diabetes mellitus, claimed as due to herbicide exposure. 4. Entitlement to service connection of right leg amputation, claimed as secondary to diabetes mellitus. 5. Entitlement to service connection to hypertension, claimed as secondary to diabetes mellitus. 6. Entitlement to service connection of peripheral neuropathy of the bilateral lower extremities, claimed as secondary to diabetes mellitus. 7. Entitlement to service connection of peripheral neuropathy of the bilateral upper extremities, claimed as secondary to diabetes mellitus. 8. Entitlement to service connection of vascular disease, claimed as secondary to diabetes mellitus. 9. Entitlement to service connection of heart disease, claimed as secondary to diabetes mellitus. 10. Entitlement to specially adapted housing. 11. Entitlement to a special home adaptation grant 12. Entitlement to automobile allowance and automobile adaptive equipment. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Morgan, Associate Counsel INTRODUCTION The veteran served on active duty from June 1961 until July 1964. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (the RO). In April 2005, the veteran presented sworn testimony before a hearing officer at the VA Medical and Regional Officer Center in Wichita, Kansas. A transcript of the hearing has been associated with the veteran's claims folder. Jurisdiction over the matter remains with the St. Louis RO. Issues subject to stay and inextricably intertwined issues For the reasons set out immediately below, the Board has determined that at this time, it can only proceed to the merits of the veteran's claim of entitlement to residuals of asbestos exposure. The veteran is seeking entitlement to service connection of lung disease and diabetes mellitus, claimed as secondary to herbicide exposure based his service aboard the USS KEARSARGE during the spring and summer of 1964. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006) that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed. In this case, the veteran has asserted that the USS KEARSARGE was located in the waters off the shore of Vietnam during Vietnam era. The Haas stay therefore applies to the claims of entitlement to service connection of lung disease and diabetes mellitus, claimed as due to herbicide exposure. Additionally, the veteran is seeking entitlement to service connection of several conditions claimed as secondary to diabetes mellitus. Specifically, entitlement to service connection of a right leg amputation, hypertension, peripheral neuropathy bilateral lower extremities, peripheral neuropathy bilateral upper extremities, vascular disease and heart disease each claimed as secondary to diabetes mellitus. To the extent that the outcome of the litigation in Haas could materially impact the success of the veteran's claim of entitlement to service connection of diabetes mellitus claimed as secondary to herbicide exposure, it also could materially impact the success of each of the veteran's claims for conditions claimed as secondary to diabetes mellitus. Accordingly, the Board finds that the secondary service connection claims are inextricably intertwined with the stayed claim of entitlement to service connection of diabetes. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Action on the veteran's secondary service connection claims are therefore deferred. Additionally, the veteran has filed claims for entitlement to specially adapted housing, entitlement to a special home adaptation grant and entitlement to automobile and adaptive equipment. The veteran contends that he is entitled to these benefits secondary to the impacts of diabetes and the related the secondary conditions set out above. Accordingly, the Board finds that these claims are also inextricably intertwined to the stayed and deferred claims. See Harris, supra. Action on these claims is also deferred. FINDING OF FACT The competent and probative medical evidence of record is against a finding that the veteran suffers from COPD as a residual of asbestos exposure. CONCLUSION OF LAW 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 (2007) REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking entitlement to service connection of COPD. Essentially, he contends that he was exposed to asbestos in the living quarters aboard a ship during his service in the Navy. He further argues that he has developed COPD as a consequence of such asbestos exposure. In the interest of clarity, the Board will first discuss certain preliminary matters. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the 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 claims 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. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). 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. See 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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. See 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 claims. 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]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated February 24, 2003, including evidence of "a relationship between your current disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in the above-referenced February 2003 letter whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised in the February 2003 letter that VA would assist him with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. With respect to private treatment records, the February 2003 letter informed the veteran that VA would make reasonable efforts to obtain non- Federal evidence. Included with the letter were copies of VA Form 21-4142, Authorization and Consent to Release Information, and the letters asked that the veteran complete such so that the RO could obtain private records on his behalf. The veteran was also advised in the letter that a VA examination would be provided if necessary to decide his claims. Finally, the Board notes that the February 2003 VCAA letter specifically requested that the veteran "tell us about any additional information or evidence that you think will support your claim" and to send that information directly to VA if it is in the possession of the veteran. This 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. Finally, the Board has considered the holding of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Dingess 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 a service connection claim, 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, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the veteran's claimed asbestos exposure residuals. In other words, any lack of advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. The veteran's claims of entitlement to service connection were denied based on elements (2), existence of a disability, and (3), connection between the veteran's service and the claimed disabilities. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. 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]. 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 (2007). 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, service personnel records, available private and VA post-service medical records. The veteran was accorded a VA examination in September 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 asbestos 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 (2007). 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 a Decisions Review Officer in April 2005. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Relevant 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. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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, including the September 2003 VA medical examination and an October 2002 private medical record establishes that the veteran has been diagnosed with COPD. The Board adds, however, that the September 2003 VA examiner, in reviewing the May 2003 x-ray studies, identified no specific artifactual residuals of asbestos exposure. Element (1), current disability, has therefore been met only insofar as COPD has been diagnosed, but not as to any specifically medically identified residuals of asbestos exposure. As for element (2), there is no evidence of COPD or emphysema in service, and the veteran does not appear to so contend. The veteran's contention is that he was exposed to asbestos aboard ship. The Board cannot disagree with 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 aircraft carrier, and VA has recognized that such vessels contained asbestos. Element (2) has therefore also been met. The critical element is element (3), medical nexus. The only competent medical nexus opinion is that of the September 2003 VA examiner, and it is against the veteran's claim. The September 2003 VA examiner took into account the veteran's report 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 was more likely than not the cause of his COPD. [In that regard, the Board notes that an October 2002 private medical record noted that the veteran had smoked "almost two packs per day" of cigarettes for a period of 35 years.] The Board further observes, as was alluded to above, that there is no x-ray evidence of asbestos residuals in the veteran's lungs. There is no competent medical evidence to the contrary. The veteran himself cannot supply the required medical nexus evidence. 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 has been accorded ample opportunity to submit a medical opinion in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) In short, 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 use of tobacco products is specifically precluded by law. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2007). 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 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