Citation Nr: 0807835 Decision Date: 03/07/08 Archive Date: 03/17/08 DOCKET NO. 05-13 324 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as a lung condition, to include as due to in-service exposure to asbestos. 2. Entitlement to service connection for chronic sinusitis, claimed as a sinus condition, to include as due to in-service exposure to asbestos. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from July 1987 to September 1987. The veteran served in the United States Army Reserves from April 1982 to February 1984. She also served in the United States Naval Reserves from February 1984 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2004 RO decision, which denied claims for service connection for a lung condition and a sinus condition. The Board notes that the veteran requested a Board hearing on her April 2005 VA Form 9. She was scheduled for a Travel Board hearing for October 30, 2007 at the Muskogee, Oklahoma RO. She failed to report for this hearing and offered no good cause for her absence. Therefore, the Board will proceed to adjudicate the claims on their merits. FINDINGS OF FACT 1. The veteran's COPD is not shown by competent medical evidence to be etiologically related to a disease, injury, or claimed asbestos exposure in service. 2. The veteran's chronic sinusitis is not shown by competent medical evidence to be etiologically related to a disease, injury, or claimed asbestos exposure in service. CONCLUSIONS OF LAW 1. 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, 3.304 (2007). 2. The veteran's chronic sinusitis was not incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims, 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 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (2007); 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 or her possession that pertains to the claim. VCAA letters dated in December 2003 and April 2007 fully satisfied the duty to notify provisions in regards to the veteran's claims for service connection. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letters informed her that additional information or evidence was needed to support her claims, and asked her 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 claims for service connection, 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 private medical records are in the file. All records identified by the veteran have been obtained, to the extent possible. VA has fulfilled its duty to assist. In regards to the veteran's claims of service connection, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case for either COPD or chronic sinusitis because while the veteran is competent to report that nature of her duties in service, and to describe the types of chemicals she was exposed to during that service, the record does not contain an indication that the current disabilities may be related to the purported in-service events. The Board notes that there is a low threshold for the requirement that there be indication that the claimed disability or symptoms may be associated with the established event in service. See Locklear v. Nicholson, 20 Vet. App. 410, at 418 (2006). While this is a low threshold, the Board finds that where the issue of one requiring medical expertise such as to relate a disability first complained of years after service to exposure to toxic chemicals or asbestos, the veteran's lay statements are not competent evidence to indicate a possible relationship to service such as to trigger the need for a VA examination. See also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). 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, all of the evidence submitted by the veteran or on her 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 claims. 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 claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). 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 term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2) (West 2002); see also 38 C.F.R. § 3.1(d) (2007). The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); see also 38 C.F.R. § 3.6(a) (2007). The term "active duty for training" includes, inter alia, certain full time duty in the Army National Guard. 38 U.S.C.A. § 101(22) (West 2002); see also 38 C.F.R. § 3.6(c)(3) (2007). Lay evidence of service incurrence of injury or disease, if consistent with the circumstances, conditions, or hardships of such service, will be accepted as sufficient proof of service connection of any disease or injury alleged to have been incurred in such service in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war. 38 U.S.C.A. § 1154(b) (West 2002). Every reasonable doubt in these service connection cases will be resolved in favor of the veteran, and may only be rebutted by clear and convincing evidence. Id. As an initial matter, it is noted that the veteran does not claim that she has a sinus disability or a lung disability as the result of combat service, nor does her Form DD-214 reflect that she received any medals indicative of combat service. As such, 38 U.S.C.A. § 1154(b) need not be applied. The veteran is seeking service connection for a lung condition and a sinus condition to include as due to in- service exposure to asbestos. She essentially contends that, during her service in the Army Reserves and the Naval Reserves, her lungs and sinuses were aggravated as a result of working in shipyards with petro-chemical fumes, paint and solvent fumes, asbestos particles from automotive parts, welding fumes, and working in "sick" buildings and ships with asbestos and other irritants. See veteran's statement, April 2005 and April 2006. She alleges that the injuries to her lungs and sinuses led to her current claimed lung and sinus conditions. 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). As an initial matter, the Board notes that the evidence of record does not reflect that the veteran has a current diagnosis of asbestosis or any other disease or abnormality listed as being related to asbestos in the M21-1 MR although the Board is cognizant that the list is not exhaustive. The medical evidence of record does reflect, however, that the veteran has been treated for COPD since 2000. See St. John's Medical Center treatment record, February 2000. The evidence also reflects that the veteran has been treated relatively consistently for sinusitis since January 1997. See St. John's Medical Center treatment record, January 1997. The veteran's service medical records and private treatment records do not indicate that the veteran was diagnosed with or treated for either a sinus disability or a lung disability prior to these dates. After consideration of all the evidence, the Board finds that evidence does not reflect that the veteran's chronic sinusitis and COPD are related to an incident of service, including claimed exposure to asbestos. As noted, the veteran claims her COPD and sinusitis are the result of working in shipyards with petro-chemical fumes, paint and solvent fumes, asbestos particles from automotive parts, welding fumes, and working in "sick" buildings and ships with asbestos and other irritants. See veteran's statements, April 2005 and April 2006. The Board notes that working in shipyards, and the manufacture and servicing of friction products, such as clutch facings and brake linings, are among the occupations specifically listed as having higher incidents of asbestos exposure. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). However, while the veteran's service personnel records do not necessarily specifically document her work with automotive parts and in "sick" buildings, ships, and shipyards, there is no competent medical evidence of record linking her current COPD or chronic sinusitis to her active duty or Reserve service, to include exposure to toxic chemicals and/or asbestos. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). As there is no evidence of in-service treatment for COPD or chronic sinusitis, and no competent medical opinion has related the veteran's sinusitis and COPD to her service, the veteran's claims must fail. See Hickson, supra. In regards to the veteran's statements that she has a lung disease and a sinus disability as a result of exposure to asbestos in service, the Board observes that she is a layperson, and not competent to provide competent evidence on a matter such as the diagnosis or etiology of a claimed medical condition. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Likewise, while it is argued that medical literature provided by the veteran is supportive of the claims for service connection, the Board finds that such generic texts, which do not address the facts in this particular veteran's own case, and with a sufficient degree of medical certainty, do not amount to competent medical evidence of causality. Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). With regard to any potential nexus between the veteran's current COPD and smoking, it is noted that she has not claimed that she suffers from COPD related to in-service tobacco use, and furthermore, service connection for disability based on a veteran's addiction to nicotine is prohibited for claims filed after June 9, 1998, when the veteran's claim was filed. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2007). As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for COPD and chronic sinusitis, 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, to include as due to in-service exposure to asbestos is denied. Entitlement to service connection for chronic sinusitis, to include as due to in-service exposure to asbestos is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs