Citation Nr: 0810085 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-28 340 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a lung condition, to include asbestosis. 2. Entitlement to service connection for mononeuropathy multiplex, claimed as nerve damage to the arms, hands, and feet. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran served on active duty from February 28, 1961 to December 12, 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (the RO). FINDINGS OF FACT 1. The veteran was exposed to asbestos during service. 2. The veteran served in the Republic of Vietnam from October 1966 to September 1967. He is presumed to have been exposed to herbicides. 3. The veteran does not have a lung condition, including asbestosis, that is related to any event of his military service. 4. The veteran does not have mononeuropathy multiplex that is related to any event of his military service. CONCLUSIONS OF LAW 1. The veteran does not have a lung condition, including asbestosis, that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). 2. The veteran's mononeuropathy multiplex is not the result of disease or injury incurred in or aggravated during active military service; it may not be presumed to have been incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection of a lung disorder and service connection of mononeuropathy multiplex. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence with respect to the issue on appeal. I. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (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 claim. 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). Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in three letters from the RO each dated December 18, 2002. The letters advised the veteran of the provisions relating to the VCAA. Specifically, the veteran was advised in these letters that VA would obtain all evidence kept by the VA and any other Federal agency, including VA facilities and service medical records. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency as long as he completed a release form for such. The letters specifically informed the veteran that for records he wished for VA to obtain on his behalf he must provide enough information about the records so that VA can request them from the person or agency that has them. Finally, the veteran received letters which provided specifically tailored information concerning establishing entitlement to service connection of a condition due to herbicide exposure and a separate narrowing tailored letter advising the veteran of the information needed to allow VA to verify his claimed asbestos exposure. In the December 2002 letters, the veteran was specifically advised to provide VA with any other evidence or information that could support his claim. He was given examples of evidence which was required and types of documents or statements which could support his claim. Further, the veteran was provided with instructions on submitting additional information and evidence to VA. This request complies with the "give us everything you've got" requirements of 38 C.F.R. § 3.159(b) in that the veteran was informed that he could submit or identify evidence other than what was specifically requested by the RO. Similar requests were made in an August 2007 VCAA letters. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 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. In this case, element (1), veteran status, is not at issue. With respect to elements (2) and (3), current existence of a disability and relationship of such disability to the veteran's service, the veteran received specific notice as to both elements in the December 2002 VCAA letter. Regarding elements (4) and (5), degree of disability and effective date, the veteran received specific notice as to both in an August 2007 letter. In response to that letter, the veteran notified VA that he had no further evidence to submit. Any lack of knowledge as to those elements prior to the initial adjudication of the veteran's claims is rendered moot by the RO's denial of those claims. In other words, any lack advisement as to those two elements is meaningless, because disability ratings and effective dates were not assigned. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. The veteran's representative has not alleged that the veteran has received inadequate VCAA notice. The veteran is obviously aware of what is required of him and of VA and has submitted a variety of argument and evidence in support of his claims. 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). In short, the Board concludes that the notice provisions of the VCAA have been complied with to the extent required under the circumstances presented in this case. Duty to assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist has been fulfilled. The veteran's service medical records have been obtained, as have the records of his private treatment, VA treatment, and records from the Social Security Administration. He was afforded a VA examination relating to his claim of service connection for a lung condition during October 2005. The private treatment records relating to the veteran's neuropathy disorders included in the Social Security Administration records were sufficient for rendering a decision on the claim of service connection for mononeuropathy multiplex. The veteran has not identified and/or provided releases for any other relevant evidence that exists and can be procured. Therefore, no further development action is warranted. II. The Merits of the Veteran's Claims A. Lung Condition Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran contends that he has asbestosis that was caused by his having been exposed to asbestos from brake assemblies while serving as a track vehicle mechanic in service for nine years. His discharge record (DD 214) confirms that his military occupational specialty was that of a track vehicle mechanic. In a December 2002 statement in support of his claim, the veteran said that he was told in October 1991 that he had some permanent lung damage; that he did not know if it was asbestos, but that the suggestion was there. In his December 2003 notice of disagreement, he said that, as a mechanic for 9 years in service, he was heavily exposed to asbestos brake shoes. He also stated that he had had no treatment, but that he wanted VA to check his lungs. The record shows that during October 1991 the veteran was examined at Salinas Valley Memorial Hospital for possible cardiopulmonary disease and pulmonary embolism. At that time a radiographic perfusion study of the veteran's lungs showed a low probability for pulmonary embolism, and very small perfusion defects and air trapping which suggested some degree of obstructive pulmonary disease. The veteran's SMRs, including the report of his separation examination, show no complaints, diagnosis, or treatment related to any respiratory ailment. A VA examiner in October 2005 noted that the veteran had not sought treatment for any respiratory ailment since 1991. His only medications consisted of multivitamins. While he complained of shortness of breath during and since service, he reported that he could walk less than one mile; climb one to two flights of stairs with no difficulty, and he was able to perform his daily activities without assistance. The veteran also reported that he had smoked one pack per day for thirty years, but he cut back to two cigarettes per day in 2000. A chest x-ray showed no active pulmonary disease. A computed tomographic (CT) study of the chest showed bullious emphysema; focal pleural thickening at the right lung base associated with soft tissue density which could represent scarring, pleural thickening or a small pulmonary nodule; and atherosclerosis. A follow-up study was recommended in six to eight months. The examiner diagnosed the veteran with emphysema which was less likely than not related to the veteran's exposure to asbestos in service. She further opined that her findings were more likely than not related to the veteran's history of smoking. Common materials that may contain asbestos include steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. M21-1MR, Part IV.ii.2.C.9.a (December 13, 2005). The manufacture and servicing of friction products containing asbestos, such as clutch facings and brake linings, have been shown, among others, to be occupations involving exposure to asbestos. M21-1MR, Part IV.ii.2.C.9.f. Diseases associated with exposure to asbestos are fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate. M21-1MR, Part IV.ii.2.C.9.b. The clinical diagnosis of asbestosis requires both (1) a history of exposure to asbestos and (2) radiographic evidence of parenchymal lung disease. M21-1MR, Part IV.ii.1.H.29 (December 13, 2005). Here, while there is a history of possible exposure to asbestos, there is no evidence of parenchymal lung disease. If the brakes on the track vehicles on which the veteran worked while in service contained asbestos, which is not shown in the record, it is possible that he came into contact with asbestos while working on as a track vehicle mechanic while in service. However, even if it could be shown that the brakes in question contained asbestos, the degree to which he was exposed would be impossible to determine. There is no way to accurately determine the frequency or degree of contact with brake components, let alone any asbestos that may have been contained therein. Taking all of this into account, and even if exposure to an asbestosis-causing level is conceded, the evidence does not show that the veteran has been diagnosed with asbestosis. The veteran himself in his December 2002 statement only said that he suspected that exposure to asbestos had caused his problem. He has presented no medical evidence that he has ever been diagnosed with asbestosis, and he has not sought treatment for any respiratory ailment since October 1991. There is nothing of record showing that the veteran has parenchymal lung disease. The veteran's current respiratory- related diagnosis is only emphysema, which the VA examiner opined was not likely related to his service, and was more likely related to his history of smoking. In sum, there is no objective evidence that the veteran has asbestosis. There is only the veteran's own belief that he has asbestosis that was caused by exposure to asbestos while in service. However, there is no evidence of record showing that the veteran has the specialized medical education, training, and experience necessary to render competent medical opinion as to the diagnosis or etiology of his disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) (2007). Consequently, the veteran's own assertions as to the nature and etiology of his respiratory disability have no probative value. The Board also notes that the veteran's representative, in his February 2008 brief, also contended that the veteran's lung condition is related to exposure to Agent Orange in service while in Vietnam, and that service connection on a presumptive basis should be considered. However, a review of the veteran's statements on this point do not show that he has advanced this theory. Further, the RO has never adjudicated the veteran's claims on these bases. 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. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this case, the Board finds that there is no prejudice in considering the representative's newly asserted theory of entitlement. As discussed in detail above, the veteran has been advised of the evidence necessary to make out a successful claim of entitlement to service connection including as specifically pertaining to a claim based on asbestos or herbicide exposure. Concerning herbicide exposure the veteran's exposure to herbicide has been presumed. However, he has not been diagnosed with a condition that is presumed to be related to herbicide exposure. See 38 C.F.R. § 3.309 (e). Additionally, as set out in detail above, the medical evidence of record has indicated that to the extent the veteran suffers from lung disease, this condition is related to tobacco use and not any event in service. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The veteran does not have asbestosis or any other respiratory disease that is traceable to active military service. B. Mononeuropathy Multiplex The veteran contends that he is disabled from nerve damage due to exposure to Agent Orange when he served in Vietnam. Review of the veteran's private medical records reveals that the problem started in about May 1991 when the fingers on his left hand began to get numb. In July 1991 the veteran started to feel pain in his right hand. He underwent a carpal tunnel release, but the symptoms continued to progress to where he developed increasing weakness in the right greater than the left hand. A February 1992 electromagnetic nerve conduction (EMG) study suggested multiple sensory motor axonal neuropathies. In August 1996 Dr. S.A., a Social Security medical examiner, noted that the veteran had a five year history of weakness, atrophy and numbness involving primarily his right greater than the left upper extremities. He opined that it did appear that the veteran had mono- neuritis multiplex. The veteran had not work since 1991 because of this disability of the nervous system. No cause has been identified for the veteran's nerve disorder. As noted above, generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza, supra. Authority for the presumption of service connection for diseases associated with exposure to certain herbicide agents is found at 38 U.S.C.A. § 1116 (West 2002 & Supp.2007). Regulations implementing the statute, establishing the circumstances of exposure, and the diseases linked to such exposure are found at 38 C.F.R §§ 3.307(a)(6), 3.309(e) (2007). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The regulations include acute and subacute peripheral neuropathy. To warrant service connection on a presumptive basis, acute and subacute peripheral neuropathy must become manifest to a compensable level within a year after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). Acute and subacute peripheral neuropathy means a transient peripheral neuropathy that appears within weeks or months of exposure and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. Here, the veteran's SMRs show no complaints, diagnosis, or treatment related to any nerve disorder, nor is there any evidence of complaints, diagnosis or treatment for any nerve disorder within one year after the veteran returned from Vietnam in September 1967. He was not separated from service until December 1969, and his separation examination does not show any complaint, diagnosis, or treatment for a nerve disorder. Therefore, there is no evidence on which to base a finding of direct service connection. The significant determining fact in this case is that the veteran's neuropathic disorder did not manifest itself until 1991, many years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Board further notes that presumptive service connection is only for acute and subacute neuropathy that becomes manifest to a compensable level within a year after the last date on which the veteran was exposed to an herbicide agent (one year from September 1967 when he returned from Vietnam). Therefore, the veteran's claim of service connection must fail, both on a direct and a presumptive basis. Additionally, to the extent that the various medical records contained within the file refer to a cause for the veteran's neuropathic disorder, none of those records attribute the disorder to any event in service. In his December 2003 notice of disagreement, the veteran contended that he was exposed to Agent Orange during his tour of duty in Vietnam, and that it lay dormant in his system for years until he was diagnosed with carpal tunnel syndrome in 1991, and started destroying his nerves. Although the veteran believes that his difficulties with his neuropathic disorders can be attributed to exposure to herbicides in service, the record does not establish that he has the medical training necessary to offer competent opinions on matters of medical diagnosis or etiology. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (a lay person is not competent to offer opinions that require medical knowledge). As with the veteran's claim of entitlement to service connection of a lung condition, in the February 2008 brief the veteran's representative advanced an alternate theory of causation for the claimed neurological disorder, specifically, that the disorder has been incurred secondary to the documented asbestos exposure. For the reasons set out above, the Board has determined that there is no prejudice to the veteran for it to consider the representative's newly advanced theory. See Bernard, supra. Also as noted above, the veteran's exposure to asbestos has been established. However, the medical evidence of record does not relate the veteran's neurological disability to asbestos exposure. The only evidence of record which seeks to establish this connection are the contentions of the veteran's representative in the February 2008 brief. The lay conclusions offered by the representative are not a competent source of medical evidence on that point. See Espiritu, supra. Accordingly, the evidence of record does not indicate that the veteran's neurological disorder is related to asbestos exposure. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this service connection claim. The veteran's mononeuropathy multiplex is not traceable to his active military service. ORDER Service connection for a lung condition, to include asbestosis, is denied. Service connection for mononeuropathy multiplex, claimed as nerve damage to the arms, hands, and feet, is denied. ____________________________________________ K.M.MORGAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs