Citation Nr: 0803759 Decision Date: 02/01/08 Archive Date: 02/12/08 DOCKET NO. 06-19 538 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected multiple scars of both legs. 2. Entitlement to service connection for residuals of chest compression. 3. Entitlement to service connection for type II diabetes mellitus. 4. Entitlement to service connection for breathing problems secondary to asbestos exposure. 5. Entitlement to service connection for breathing problems secondary to radiation exposure. 6. Entitlement to service connection for breathing problems secondary to mustard gas exposure. 7. Entitlement to service connection for a back disability. 8. Entitlement to service connection for a left knee disability. 9. Entitlement to service connection for a jaw disability. 10. Entitlement to service connection for bilateral pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from June to December 1960 and from September 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) from a December 2004 rating decision, by which the RO denied entitlement to the benefits sought herein with the exception of multiple scars of both legs for which service connection was granted. Regarding that issue, the veteran is contesting the initial evaluation assigned. The veteran testified at a hearing before the undersigned in June 2007. The hearing took place at the RO. By the December 2004 rating decision at issue herein, the RO denied service connection for diabetes mellitus type II. The veteran filed a notice of disagreement in November 2005. The RO, however, has not provided a statement of the case concerning this issue. As a statement of the case has not yet been issued on this matter, additional action by the RO is required as set forth below in the Remand portion of this decision. See Manlincon v. West, 12 Vet. App. 238 (1999). The following issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC: Entitlement to an initial compensable evaluation for service- connected multiple scars of both legs. Entitlement to service connection for residuals of chest compression. Entitlement to service connection for type II diabetes mellitus. Entitlement to service connection for breathing problems secondary to radiation exposure. Entitlement to service connection for breathing problems secondary to mustard gas exposure. Entitlement to service connection for a back disability. Entitlement to service connection for a left knee disability. Entitlement to service connection for a jaw disability. Entitlement to service connection for bilateral pes planus. FINDING OF FACT The veteran is not shown to have been exposed of asbestos and is not shown to be suffering from breathing problems secondary to asbestos exposure. CONCLUSION OF LAW Breathing problems secondary to asbestos exposure were not incurred in or as a result of active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case, the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letters sent to the veteran in June 2004 and March 2006 that fully addressed all notice elements to include those addressed in Dingess and was sent prior to the initial AOJ decision in this matter. The letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no medical examination has been provided. However, as there is no competent evidence of breathing problems due to asbestos exposure, no medical examination or opinion need be provided herein. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service medical records. The veteran has denied private medical treatment and/or has failed to supply sufficient information regarding private medical treatment. In such situations, VA need not obtain private medical records. 38 C.F.R. § 3.159(c)(1)(i). The veteran has indicated that he has been seeking VA medical treatment for several years. As outlined below, however, as the evidence does not indicate exposure to asbestos, and obtaining VA medical records, therefore, would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided). 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). 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). Discussion The veteran asserts that he suffers from breathing problems due to asbestos exposure in service. His DD Form 214 reflects that he served in the Army as an ammunition storage specialist. The record does not reveal any duties involving mining, milling, working in shipyards, carpentry and construction, manufacture and servicing of friction products, or the manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, or military equipment. See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. As such, it does not appear likely that the veteran was exposed to significant or material amounts of asbestos in service. Id. Furthermore, the record is silent as to diseases and conditions associate with asbestos exposure. The veteran is not shown to be suffering from asbestosis, pleural effusion, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, or any of the other cancers associated with asbestos exposure. M21-1, Part VI, para 7.21(a). The Board notes that the veteran's June 2007 hearing testimony indicates that he has pursued very little medical care in the many decades following service. Presumably, had he been suffering from any of the diseases and conditions enumerated in M21-1, Part VI, para 7.21(a), he would have been in receipt of extensive medical treatment and would have been able to document specific asbestos-related disabilities. In any event, the record contains no explicit reference to asbestos exposure in service, and the veteran was not involved in any occupation that would imply such exposure. Furthermore, he is not shown to be suffering from any disability commonly associated with asbestos exposure. Absent a presently shown disability, service connection cannot be granted. As such, service connection for breathing problems due to asbestos exposure is denied. 38 C.F.R. § 3.303; 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). The Board observes that there may well be some outstanding VA medical records that have yet to be included in the claims file. The Board need not wait for receipt of these records, as service connection for any disability cannot be granted as due to asbestos exposure. The evidence reveals no actual exposure, and during service, the veteran was not involved in any activities suggestive of asbestos exposure. See Sabonis, supra; Soyini, supra. Furthermore, a medical examination need not be provided herein. 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 demonstrated factual basis to relate the veteran's claimed breathing problems due to asbestos exposure to service, a medical opinion regarding whether the veteran suffers from an asbestos-related ailment that is directly related to service would be of no value in this case. VA is not required to provide assistance if no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). This is a case where the preponderance of the evidence weighs against the veteran's claim, as there is no competent medical or other evidence in its favor. As 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 breathing problems secondary to asbestos exposure is denied. REMAND For the reasons set forth below, a remand to the RO is necessary. The Board issues its apologies to the veteran for the delay that this remand will necessarily entail. However, in order to ensure that the veteran is accorded proper notice and assistance, this remand is unavoidable. Regarding the increased rating matter on appeal, the RO must send the veteran a supplemental VCAA notice consistent with Vazquez-Flores v. Peake advising him that to substantiate the claim, he must provide or ask VA to obtain medical or lay evidence demonstrating a worsening of the disability and the effect that worsening has on his employment and daily life. Also, if the diagnostic code under which the disability is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. Additionally, the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App Jan. 30, 2008) (citing cases). The RO must request any available records concerning the veteran's exposure to radiation and forward any such records to the Under Secretary for Health for the preparation of a dose estimate, to the extent feasible, based upon available methodologies. See 38 C.F.R. § 3.311(a)(2)(iii) (2007). The RO must associate with the claims file all VA clinical records pertinent to the veteran dated from January 2005 to the present. Next, the RO should schedule a VA dermatologic examination to determine that nature and severity of the veteran's service- connected scars. All symptoms and manifestations must be enumerated to include size of scars and approximate surface area encompassed by the scars. The RO should schedule a VA orthopedic examination to determine whether the veteran suffers from any disabilities of the back, left knee, jaw, or feet. As to each relevant orthopedic disability diagnosed, the examiner should opine regarding etiology. A VA respiratory examination is necessary to determine whether the veteran suffers from the breathing problems which he claims. Specifically, the veteran asserts problems resulting from a chest compression, exposure to mustard gas, and exposure to radiation. In the event that any respiratory disability is found, the examiner must provide an opinion regarding etiology. Finally, as indicated in the Introduction, in December 2004, the RO denied service connection for diabetes mellitus type II. A timely notice of disagreement has been filed with regard to that issue, but the RO has not yet issued a statement of the case regarding this matter. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant of VA benefits is entitled to a statement of the case. Manlincon, supra. Therefore, the Board must remand the claim for an earlier effective date so that a statement of the case may be prepared. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Send the veteran a supplemental VCAA notice regarding the increased rating issue on appeal that is consistent with the mandates contained in Vazquez-Flores. 2. Request any available records concerning the veteran's exposure to radiation and forward any such records to the Under Secretary for Health for the preparation of a dose estimate, to the extent feasible, based upon available methodologies. See 38 C.F.R. § 3.311(a)(2)(iii). 3. Associate with the claims file all VA clinical records pertinent to the veteran dated from January 2005 to the present 4. Schedule a VA dermatologic examination to determine that nature and severity of the veteran's service-connected scars. All symptoms and manifestations must be enumerated to include size of scars and approximate surface area encompassed by them. The claims file should be reviewed by the examiner in conjunction with the examination, and a rationale for all conclusions should be provided. In the report, the examiner must indicate whether the claims file was reviewed and identify the records on which he or she relied. 5. Schedule a VA orthopedic examination to determine whether the veteran suffers from any disability of the back, left knee, jaw, or feet. As to each relevant disability diagnosed, the examiner should opine regarding etiology, including whether such disability is at least as likely as not related to service. A rationale for all conclusions must be provided. The claims folder, including all existing service medical records, must be made available to the examiner for review in conjunction with the examination. In the report, the examiner must indicate whether the claims file was reviewed and identify the records on which he or she relied. 6. Schedule a VA respiratory examination to determine whether the veteran suffers from the breathing problems which he claims. Specifically, the veteran asserts problems resulting from a chest compression, exposure to mustard gas, and exposure to radiation. In the event that any respiratory disability is found, the examiner must provide an opinion regarding etiology, including whether such disability is at least as likely as not related to service. A rationale for all conclusions must be provided. The claims folder, including all existing service medical records, must be made available to the examiner for review in conjunction with the examination. In the report, the examiner must indicate whether the claims file was reviewed and identify the records on which he or she relied. 7. Following completion of the requested development, the RO should readjudicate the claims. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a Supplemental Statement of the Case. An appropriate period of time should be allowed for response thereto. 8. The RO must take appropriate steps to issue a statement of the case concerning the issue of entitlement to service connection for diabetes mellitus type II. The veteran should be advised of the time period within which to perfect his appeal. 38 C.F.R. § 20.302(b) (2007). The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 (West Supp. 2007). _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs