Citation Nr: 0809631 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 04-06 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for chronic obstructive pulmonary disease, including as secondary to asbestos exposure. 4. Entitlement to service connection for allergic rhinitis, including as secondary to asbestos exposure. 5. Entitlement to service connection for hyperlipidemia. 6. Entitlement to service connection for diabetes mellitus, type II, including as secondary to exposure to herbicidal agents. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from April 1965 until April 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2003 and August 2007 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board first considered this appeal in May 2007 and remanded the claim for additional development. The RO/Appeals Management Center (AMC) completed all requested development, but continued the denial of benefits sought. As such, this matter is properly returned to the Board for appellate consideration. During the October 2007 Board hearing, the veteran raised a claim for entitlement to service connection for tinnitus. This claim has not been adjudicated. Additionally, a review of the record reflects the veteran has raised claims for service connection for bronchitis and an increased evaluation for the service-connected generalized anxiety disorder. These claims have not been adjudicated. As such, the claims for tinnitus, bronchitis and increased evaluation for anxiety are REFERRED to the RO for appropriate action. The veteran submitted additional evidence at the October 2007 Board hearing. The veteran also submitted a written waiver of review of that evidence by the agency of original jurisdiction and therefore referral to the RO of evidence received directly by the Board is not required. 38 C.F.R. § 20.1304. However, because the case is being remanded, the RO will have the opportunity to consider the evidence submitted to the Board in October 2007. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The issues of entitlement to service connection for bilateral hearing loss, chronic obstructive pulmonary disease, hypertension and diabetes mellitus, type II are being remanded and 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. FINDINGS OF FACT 1. On October 24, 2007, prior to the promulgation of a decision in the appeal, the veteran withdrew the claim for entitlement to service connection for hyperlipidemia. 2. Allergic rhinitis was not incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Substantive Appeal for entitlement to service connection for hyperlipidemia have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The criteria for a grant of service connection for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim As an initial matter, under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2007). In October 2007, the veteran submitted a statement to the RO that clearly indicated he wished to withdraw his appeal for the issue of entitlement to service connection for hyperlipidemia. The veteran has withdrawn this appeal. Accordingly, the Board does not have jurisdiction to review the appeal concerning entitlement to service connection for hyperlipidemia and this claim is dismissed. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & 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 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). 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 U.S. Court of Appeals for Veterans Claims 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 letters sent to the veteran dated in November 2002, December 2002, January 2003 and February 2005 that fully addressed all notice elements of Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the veteran's claim, such error was harmless given that service connection is being denied and hence no rating or effective date will be assigned with respect to this claimed condition. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Therefore, the Board finds that the veteran has not been prejudiced in the Board's adjudication of this claim. 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 an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service medical records, VA outpatient treatment records and private medical records. The veteran submitted private medical records, newspaper articles and records documenting the history of the U.S.S. Bushnell in support of his claim. Additionally, the veteran was afforded VA examinations in connection with his claim in June 2003 and October 2003. The Board notes the veteran's Social Security file has not yet been obtained and as such has remanded some of the veteran's claims. However, with respect to the claim for service connection for allergic rhinitis, the Social Security Administration Notice of Decision did not indicate that the veteran applied for disability benefits based upon allergic rhinitis, nor did the Social Security Administration find that allergic rhinitis was a relevant impairment. As such, the absence of the file is not prejudicial. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In fact, in April 2000 the veteran indicated he had no additional evidence to submit. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Merits of the Claim The veteran seeks service connection for allergic rhinitis. Specifically, the veteran contends that exposure to asbestos after a shipboard fire caused his allergic rhinitis. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred 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). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran has a current disability as is illustrated by the June 2003 and October 2003 VA examinations. The remaining question, therefore, is whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus or relationship between the current disability and the inservice disease or injury. Service medical records, however, are devoid of complaints, treatment or a diagnosis of allergic rhinitis. Although there was one notation of an upper respiratory infection in April 1965 and a notation of a stuffed up nose in August 1967, these resolved without residual symptoms. Furthermore, the April 1968 examination performed in connection with the veteran's separation from service described the nose and sinuses and normal and noted no defects or deformities other than some scars of the left arm and left thumb. Even assuming there was an inservice incurrence, service connection is not otherwise warranted as there is no competent medical evidence of a nexus. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (Holding that the Board has the fundamental authority to decide a claim in the alternative.). By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran underwent a VA examination in June 2003 to assess the presence and etiology of any disorder. The veteran described a history of emphysema and three prior occurrences of pneumonia, including one during active service. He denied wheezing but noted a cough, particularly when he was exposed to dust, pollen or smoke. He also described occasional clear phlegm and throat irritation with postnasal drip during exacerbations of chronic rhinitis. The veteran reported he smoked about a pack per day for approximately 20 years. He described shortness of breath when working and dyspnea upon exertion, such as walking. He described a history of allergic rhinitis with sinusitis and explained he treated for symptoms of rhinorrhea and nasal congestion since the early 1970s. He treated with decongestants and antihistamines. He described exacerbations in the spring, summer and fall. Clinical examination reflected the right tympanic membrane was normal and the left one was slightly dull and retracted with a decreased light reflex. Nasal turbinates were normal in appearance without erythema or edema. There was a slight deviation of the septum to the right side. There was clear passage of air down both sides of the nose. There was some increased mucus in the right nostril; however, no crusting was noted. The throat showed slight erythema and hypertrophy of the posterior lymphoid tissue. The chest was normal in shape without rales, rhonchi or wheezes. The assessment was allergic rhinitis with residuals and chronic obstructive pulmonary disease secondary to tobacco abuse. The examiner explained the veteran was exposed to asbestos during service. However, the examiner opined the veteran's allergic rhinitis was not related to asbestos exposure. In fact, the examiner noted there was no evidence of an illness due to the exposure to asbestos. The veteran underwent another VA examination in October 2003. During this examination the veteran related he may have had allergies in childhood but was never treated. He explained he had allergies during service but only treated with over the counter medications. He developed severe allergic rhinitis in the early 1970s and was treated with a vaccine and other medications. He complained of a frequently stopped up nose and watery, itchy and burning eyes. He also sneezed frequently. The symptoms were worse in the spring, summer and fall. He denied prior sinus difficulty. Clinical examination reflected the external nose was straight and the anterior nasal septum was dislocated slightly in to the left nasal airway but did not cause significant obstruction. There was an adequate nasal airway bilaterally. The nasal turbinates were normal in size and color. No pus or polyp was visualized. The oral cavity revealed missing lower molars and an upper partial plate. The posterior pharynx was negative. No nodes were felt in the neck. The thyroid was not enlarged. The diagnosis was allergic rhinitis and the examiner opined the allergic rhinitis was less likely than not service connected. The examiner explained the allergies were most likely from an inherited tendency to have allergies and were likely aggravated by smoking. The Board also examined whether service connection was warranted on a theory of continuity of symptomatology. In this regard, the veteran testified at a Board hearing in support of his claim in October 2007. During this hearing, the veteran affirmed he did not seek treatment for allergic rhinitis during service. The veteran explained that he began having allergic problems after a fire aboard the U.S.S. Bushnell and believed the fire exposed him to smoke, particles, dust and asbestos which caused the rhinitis. He indicted he saw a private physician shortly after his separation from service; however was unable to obtain all of the records. The veteran also related that he had the allergic symptoms prior to the time when he began smoking. Additionally, the veteran submitted records from a private physician which reflected treatment in September 1978. This private treatment record noted the veteran had complained of hay fever symptoms as early as 10 years prior to the visit. However, these recitations of medical history are simply not supported by the evidence of record. The law provides that the transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Leshore v. Brown, 8 Vet. App. 406, 409 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the veteran). The veteran is competent to testify as to the symptoms he experienced, including the presence of symptoms such as congestion or itchy, watery eyes. Barr v. Nicholson, 21 Vet. App. 303 (2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, the Board finds the veteran's testimony is less probative as there are conflicting statements and evidence illustrating a gap in treatment for symptoms. See Buchanan v. Nicolson, 451 F.3d 1331 (Fed.Cir. 2006). Specifically, although the veteran testified he had symptoms in service, the examination at the time of separation found that the nose and sinuses were normal and reflected no complaints of allergic rhinitis symptoms. Furthermore, after treatment from September 1978 until August 1980, there is no indication the veteran treated for symptoms until October 1989, a gap of approximately 9 years. The gap in evidence constitutes negative evidence that tends to disprove the veteran's claim that the veteran had an injury in service that resulted in a chronic disability or persistent symptoms. See Forshey v. West, 12 Vet. App. 71, 74 (1998); aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Although the Board does not doubt the veteran's belief that his allergic rhinitis had its onset during service, the veteran is not a medical professional competent to render an opinion on matters of a medical diagnosis or the etiology of a diagnosed disorder. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Given the medical evidence against the claim, in particular the two VA examinations which found the allergic rhinitis was not related to service, for the Board to conclude that the veteran has allergic rhinitis that is related to service would be speculation. The law has recognized in this regard that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, the preponderance of the evidence is against the claim. The veteran, however, specifically claimed his allergic rhinitis was related to exposure to asbestos. As to claims involving service connection for an asbestos related disease, there are no special statutory or regulatory provisions. While there is guidance for adjudicators as to asbestos- exposure claims, the law remains clear that there must be a diagnosis of the claimed disability. See Veteran's Benefits Administration Manual M21-1, Part VI, 7.21. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3. The manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The manual notes that lung cancer associated with asbestos exposure originates in the lung parenchyma rather than the bronchi. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141 (1999), affd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. In reviewing claims for service connection, it must be determined whether or not military records demonstrate asbestos exposure in service; it should be determined whether or not there was asbestos exposure pre- service and post- service; and it should be determined if there is a relationship between asbestos exposure and the claimed disease. In order to warrant service connection in this case the evidence must demonstrate not only that the veteran was in fact exposed to asbestos during service, but also that he has been diagnosed by a competent health care practitioner with asbestosis or some other asbestos-related disease coupled with an opinion that such exposure was the cause of the current disorder. The veteran contends a shipboard fire on the U.S.S. Bushnell exposed him to asbestos which in turn caused the allergic rhinitis. The veteran's service personnel records confirm his assignment aboard the U.S.S. Bushnell beginning in July 1965. Additionally, the veteran submitted a history of the ship which confirmed the U.S.S. Bushnell had an electrical fire in 1965. While no detailed findings concerning asbestos were made, assuming, as the Board will for purposes of this decision, that the veteran was exposed to asbestos during service as he has contended, there is a lack of any medical evidence demonstrating that the veteran has an asbestos related condition. Rather, in the present appeal, the veteran seeks service connection for allergic rhinitis, a condition not associated with asbestos exposure. See M21-1, Part VI, 7.21. Furthermore, as noted above, a VA examination dated in June 2003 concluded that the allergic rhinitis was not related to asbestos exposure and there was no evidence of an illness due to exposure to asbestos. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, service connection for allergic rhinitis as secondary to asbestos exposure is not warranted. There can be no doubt from review of the record that the veteran rendered honorable and faithful service for which the Board is grateful, and the veteran is sincere in his belief that his allergic rhinitis is related to military service. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal for service connection for hyperlipidemia is dismissed. Service connection for allergic rhinitis is denied. REMAND At the October 2007 Board hearing, the veteran submitted additional records in support of his claims, including a decision granting Social Security Administration disability benefits. This decision reflected the veteran applied for Social Security Administration benefits based in part upon high blood pressure and chronic obstructive pulmonary disorder. The decision found the veteran was severely disabled based in part upon chronic obstructive pulmonary disorder. However, complete copies of the medical records upon which any disability decision was based, as well as any agency decision with the associated List of Exhibits, have not been made part of the claims file and may be relevant to the veteran's claims for entitlement to service connection for hypertension and chronic obstructive pulmonary disorder. VA's duty to assist extends to obtaining records from the Social Security Administration. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(c)(2). Additionally, the veteran has submitted a private audiologic evaluation from Miracle Ear dated in November 2002 which is in a graph format and has not been converted to an appropriate numerical form. Accordingly, this evidence requires translation by a certified specialist. See Kelly v. Brown, 7 Vet. App. 471 (1995) (Holding that where audiogram in support of claim was submitted by claimant but without interpretation as to relevant regulatory provisions, Board must obtain such medical interpretation). During the October 2007 Board hearing the veteran testified that he received treatment for his hearing loss at the VA medical Center, and was last seen around March 2007. These records are not associated with the claims file and should be obtained. After the appellant received notice of an August 2007 rating decision that denied his claim for service connection for diabetes mellitus, type II, he expressed disagreement with the decision in a statement dated in August 2007. The claims file does not contain a Statement of the Case for the claim. The Board must therefore remand that issue for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the veteran and ask him to specify all medical care providers who treated him for his claimed conditions. The RO/AMC should then obtain and associate with the claims file any records identified by the veteran that are not already associated with the claims file. The RO/AMC should specifically request medical records from the Winston- Salem VA Medical Center and associate these records with the claims file. 2. The RO/AMC should obtain the veteran's Social Security Administration disability file, including any pertinent claim for benefits, the Social Security Administration decision, any List of Exhibits associated with the decision and copies of all of the medical records upon which any decision concerning the veteran's entitlement to benefits was based. 3. The RO/AMC shall arrange to have all graphical audiograms translated to numeric form by a VA audiologist. 4. The RO/AMC should take such additional development action as it deems proper with respect to the claims, including the conduct of any other appropriate VA examinations, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. 5. The RO/AMC should re-examine the veteran's claim pertaining to entitlement to service connection for diabetes mellitus, type II. If no additional development is required, the RO should prepare an SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefit sought, or by the veteran's withdrawal of the NOD. If, and only if, the veteran files a timely substantive appeal, should the issue be returned to the Board. When the development requested has been completed, the claim should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is notified. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs