Citation Nr: 0815781 Decision Date: 05/14/08 Archive Date: 05/23/08 DOCKET NO. 05-26 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of boils. 2. Entitlement to service connection for nosebleeds. 3. Entitlement to service connection for hyperthyroidism. 4. Entitlement to service connection for coronary artery disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The veteran served on active duty in the United States Air Force from August 1967 to December 1971. This appeal arose from a March 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (the RO) which denied the veteran's claims of entitlement to service connection for the four disabilities listed above. In January 2008, the veteran presented testimony at a personal hearing at the RO which was chaired by the undersigned Veterans Law Judge (VLJ). FINDINGS OF FACT 1. The veteran was not exposed to asbestos in service. 2. The veteran currently has no residuals of an in-service boil on the thigh and/or nosebleeds. 3. The veteran has been diagnosed as having a thyroid disorder and cardiovascular disease. 4. A thyroid disorder and cardiovascular disease were not present in service or for many years thereafter. CONCLUSIONS OF LAW 1. Residuals of a boil were not incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.3.3 (2007). 2. Nosebleeds were not incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.3.3 (2007). 3. A thyroid disorder was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 4. Cardiovascular disease was not incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to service connection for residuals on in-service boils, nosebleeds, hyperthyroidism and coronary artery disease. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007) In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (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]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated December 20, 2004, including a request for evidence of "a current . . . disability shown by medical evidence; and "a relationship between your current disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced December 2004 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "relevant records from any Federal agency. This may include medical records from the military, from VA Medical Centers (including private facilities where VA authorized treatment), or from the Social Security Administration." With respect to private treatment records, the letter informed the veteran that the VA would make reasonable efforts to obtain private or non-Federal medical records to include "records from State or local governments, private doctors and hospitals, or current or former employers." See the December 20, 2004 VCAA letter, page 4. The VCAA letter also specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." See the December 2004 VCAA letter, page 2. This request complies with the "give us everything you've got" requirement of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In Dingess 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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the veteran's service connection claims, element (1), veteran status, is not at issue. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the veteran's claimed disabilities. In other words, any lack advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. The veteran's claims of entitlement to service connection were denied based on elements (2), existence of a disability, and (3), connection between the veteran's service and the claimed disabilities. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements in the December 2004 VCAA letter. Because as discussed below the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's service medical records and private treatment records. The veteran has not been accorded a VA Compensation and Pension examination. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As will be discussed below, although service medical records document boils and nosebleeds, there is of record no competent medical evidence that the veteran currently has any residuals of the in-service boils or a disability manifested by chronic nosebleeds. As was discussed above, the veteran was informed that he was required to supply such evidence. He did not do so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. There is of record medical evidence that the veteran currently has a thyroid disorder and coronary artery disease. The record is missing critical evidence of that an event, injury, or disease occurred in service, McLendon element (2), and the veteran's claims for service connection for the thyroid disorder and cardiovascular disease are being denied on that basis. The outcome of these two issues hinges on matters other than those which are amenable to VA examination and medical opinion. Specifically, resolution of these claims hinge upon whether the veteran had the claimed disorders, or injuries which led to same, in service. That question cannot be answered via medical examination or opinion, but rather on evidence such as the service medical records. In the absence of evidence of in-service disease or injury, referral of these issues for an opinion as to etiology would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the veteran's claimed thyroid and cardiovascular disabilities and his military service would necessarily be based solely on the veteran's uncorroborated assertions regarding what occurred in service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. Obtaining a medical nexus opinion under the circumstances presented in this case would be a useless exercise. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no competent medical evidence of residuals of boils and a chronic condition manifested by nosebleeds; and no objective evidence of the in-service incurrence of thyroid and heart disease. In short, under the circumstances presented in this case, the Board has determined that a medical opinion is not necessary in the instant case The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has been ably represented by his service organization. He testified at a personal hearing before the undersigned VLJ. Accordingly, the Board will proceed to a decision. Initial matter - claimed asbestos exposure The veteran's presentation hinges, to some degree, on his contention that he was exposed to asbestos in service. In essence, he contends that his duties in the USAF involved delivery of aircraft parts, which according to him were "lined with asbestos . . . it's a possibility that I could have inhaled sone of the asbestos . . . ." The veteran specifically mentioned brake linings, fire resistant fabrics, gaskets and the like. See the January 14, 2008 hearing transcript, pages 5-6. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). In this case, in the December 2004 VCAA letter the RO requested specific information from the veteran concerning his alleged asbestos exposure. See the December 20, 2004 VCAA letter, pages 1-2. The veteran subsequently submitted a statement in support of his claim which reiterates that he delivered aircraft parts which contained asbestos. The veteran's DD Form 214 confirms that his specialty in the USAF was supply. His service personnel records note that he was a "pick-up & delivery driver". The Board thus has no cause for disbelieving that he delivered parts to aircraft. However, the veteran has presented no evidence whatsoever that he was exposed to asbestos fibers thereby. The veteran does not claim that he himself worked with any of the aircraft parts or material which allegedly contained asbestos. Nor has he indicated that any of these materials was damaged. His service medical records do not refer to any asbestos exposure, respiratory or pulmonary difficulties. Nor is there any post-service evidence which suggest in-service asbestos exposure. Indeed, the veteran's claimed disabilities are not included in the list of disabilities associated with asbestos exposure in M21-1, Part VI, para 7.21(a). In short, the veteran's contention hat he was exposed to asbestos fibers while delivering aircraft parts amounts to mere speculation of his part and is not substantiated by any objective evidence in the file. The Board accordingly finds that the veteran was not exposed to asbestos in service. 1. Entitlement to service connection for residuals of boils. 2. Entitlement to service connection for nosebleeds. Because these two issues involve the application of identical law to similar facts, in the interest of economy the Board will address then together. Relevant law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Essential to the award of service connection is the first Hickson element, existence of a disability. Without it, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) [noting that service connection presupposes a current diagnosis of the claimed disability]; see also Chelte v. Brown, 10 Vet. App. 268 (1997) [observing that a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection]. Analysis Concerning Hickson element (2), in-service disease or injury, a July 1969 service medical record referred to a boil on the right thigh and a June 1971 service medical record referred to frequent nose bleeds. This element has arguably been met. The Board further observes, however, that the report of the veteran's August 1971 physical examination indicate as to both the boils and the nose bleeding "No comp[lications], no seq[uelae]. To the extent that the veteran has ascribed his nosebleeds to asbestos exposure, as has been discussed above the Board has found that the evidence does not support a conclusion that the veteran was exposed to asbestos in service. The veteran's post service medical records are utterly devoid of any reference to nosebleeds or to any problems related to boils (recurrences or scars). There are of record detailed physical examination reports of the veteran by A.D.P., M.D. The veteran reported a number of medical problems, but he did not mention nosebleeds or boils. Dr. P. did not himself refer to any such problems in his reports. With respect to nosebleeds, the veteran himself denied any post-service problems: Q. . . . after service, did the nosebleeds continue? A. No, they stopped . . . Q. Do you have any now? A. No, I don't have any at all . . . around the '80s I think it stopped. See the January 14, 2008 hearing transcript, pages 9-10. With respect to residuals of the in-service boil, the veteran testified that he had "a sore or something like that, and then it will go away." See the hearing transcript, page 3. In short, there is no competent medical evidence of any current disability related to the in-service nosebleeds and boil, and the veteran himself has not indicated that any chronic residuals exist. Because the record contains no competent medical evidence establishing the presence of either claimed disability, service connection is not warranted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. Accordingly, Hickson element (1) has not been met, and the claim fails on this basis alone. With respect to the remaining Hickson element, medical nexus, in the absence of a current disability medical nexus is an impossibility. Indeed, there is of record no medical opinion which indicates or even suggests that there exists any current disability which is related to the veteran's in- service boil and nosebleeds. In conclusion, for reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the veteran's claims. The benefits sought on appeal are therefore denied. 3. Entitlement to service connection for hyperthyroidism. 4. Entitlement to service connection for coronary artery disease. These two issues will be addressed together. Relevant law and regulations The law and regulations generally pertaining to service connection have been set forth above and will not be repeated. Service connection may also be granted on a presumptive basis for certain chronic disabilities, including cardiovascular disease and endocrinopathies, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). Analysis With respect to Hickson element (1), Dr. P.'s records show diagnoses of "hypothyroidism, status post radioactive treatment for hyperthyroidism" as well as cardiovascular disease. Concerning Hickson element (2), in-service disease or injury, the Board will separately address disease and injury. With respect to disease, the veteran's service medical records contain no reference to thyroid problems or heart disease. The veteran's August 1971 separation physical examination was pertinently negative. Blood pressure was 124/80. [For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 millimeter (mm) or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2007).] There is also no evidence of cardiovascular disease or thyroid problems within the one year presumptive period after service or indeed for many years thereafter. Indeed, in an October 2000 report Dr. P. stated that the veteran had no evidence of heart disease prior to July 1998. With respect to in-service injury, the injury claimed is asbestos exposure. This has been dealt with at some length by the Board above. The Board has found that the veteran's contention has not been substantiated by any objective evidence. In short, element (2) has not been satisfied, and the veteran's claim fails on that basis. Turning briefly to the third Hickson element, medical nexus, in the absence of in-service disease or injury medical nexus is an impossibility. To the extent that the veteran himself believes that his thyroid condition and heart disease are related to his military service, it is well-settled that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. In summary, elements (2) and (3) are not met. A preponderance of the evidence is against the veteran's claims, and the benefits sought on appeal are denied. ORDER Entitlement to service connection for residuals of boils is denied. Entitlement to service connection for nosebleeds is denied. Entitlement to service connection for hyperthyroidism is denied. Entitlement to service connection for coronary artery disease is denied ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs