Citation Nr: 0816019 Decision Date: 05/15/08 Archive Date: 05/23/08 DOCKET NO. 06-23 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for chronic obstructive pulmonary disease (claimed as a respiratory condition), to include as secondary to in-service asbestos exposure. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from May 1948 to April 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which denied the veteran's claims of entitlement to service connection for tinnitus and chronic obstructive pulmonary disease (COPD). FINDINGS OF FACT 1. The competent medical evidence of record is against a finding that the veteran's hearing loss is related to in- service noise exposure or any other incident of service. 2. The competent medical evidence of record is against a finding that the veteran's COPD is etiologically related to any incident of service, including claimed exposure to asbestos. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. The veteran's COPD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for tinnitus and COPD. Essentially, he contends that the tinnitus developed after noise exposure in service. Further, he asserts that he was exposed to asbestos in the living quarters aboard a ship during his naval service. He argues that he has developed COPD as a consequence of this asbestos exposure. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (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 a claimant in the development of his 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 is 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 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 (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 claims. As part of this 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 dated September 2005: "an injury in military service or a disease that began in or was made worse during military service, or that there was an event in service that caused an injury or disease; a current physical or mental disability shown by medical evidence; and a relationship between your 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 claims in the above-referenced September 2005 VCAA letter as well as in a VCAA letter dated March 2006. Specifically, the letters stated that VA would assist the veteran in obtaining relevant records from any Federal agency, including those from the military, VA Medical Centers, and the Social Security Administration. The veteran was also advised in the letters that a VA examination would be scheduled if necessary to make decisions on his claims. With respect to private treatment records, the VCAA letters informed the veteran that VA would make reasonable efforts to request such records. The September 2005 and March 2006 letters emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the originals]. The September 2005 VCAA letter specifically requested: "If there is any other evidence or information that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." This 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 short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that each claim of entitlement to service connection consists of five elements: (1) veteran status [not at issue here]; (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 each 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 each claim. Therefore, upon receipt of an application for service connection claims, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claims 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 claims 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. The veteran was provided specific notice of the Dingess decision in a letter from the RO dated March 2006, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations, and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claims were received and when the evidence "shows a level of disability that supports a certain rating under the rating schedule." The letter also advised the veteran of examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted, and reports of treatment while attending training in the Guard or Reserve. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection for the tinnitus and COPD claims. In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. As explained above, the veteran received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements. Because the Board is denying the veteran's claims, elements (4) and (5) remain moot. In short, the record indicates 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 claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In the instant case, the Board finds reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his service connection claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. The evidence of record includes the veteran's service medical records, the veteran's statements, and the reports of VA medical treatment. The veteran was also afforded VA examinations in December 2005 [tinnitus] and May 2006 [COPD]. The examination reports reflect that the examiners reviewed the veteran's past medical history, recorded his current complaints, conducted audiological and medical examinations, and rendered appropriate diagnoses and opinions. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2007). He has also retained the services of a representative. Accordingly, the Board will proceed to a decision on the merits as to the issues on appeal. 1. Entitlement to service connection for tinnitus. Relevant law and regulations Service connection - in general Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Additionally, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b) (2007). Analysis The veteran is claiming entitlement to service connection for tinnitus due to in-service noise exposure experienced while he served aboard a Navy ship during the Korean War. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. In this case, it is undisputed that the veteran currently has tinnitus, as is evidenced by the December 2005 VA audiology examination. Hickson element (1) is, therefore, satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board will address disease and injury separately. Concerning in-service incurrence of disease, the veteran's service medical records have been obtained. Those records are pertinently negative for any diagnosis of, or complaints consistent with, tinnitus. Therefore, Hickson (2) is not satisfied on the basis of disease. Moving to in-service incurrence of injury, it is undisputed that the veteran suffered noise exposure during service. He was service connected for hearing loss in December 2005. Accordingly, Hickson (2) is satisfied on the basis of in- service injury. As for crucial Hickson (3), medical nexus, the competent medical evidence of record is limited to the report of a December 2005 VA audiological examination and a subsequent June 2006 opinion of the VA examiner. The December 2005 examination was conducted by a duly credentialed audiologist, who reviewed the veteran's complete record. Based upon the veteran's report of noise exposure in service, his current hearing loss pattern, his report of current symptoms, and his report of symptom on-set, the audiologist concluded that it was less likely as not that the veteran's reports of tinnitus were related to the significant in-service noise exposure. Th examiner noted that the veteran did not complain of tinnitus until the 1970's, more than twenty-years after his discharge from naval service. The examiner attributed the veteran's tinnitus to post- service noise exposure. The veteran contends that the December 2005 opinion is flawed, explaining that he misunderstood the examiner's question concerning the onset of tinnitus symptoms. See the veteran's February 2006 Notice of Disagreement (NOD). The veteran asserted that the onset of tinnitus symptoms occurred at the time of service, not 15-20 years ago, as he indicated to the audiologist, and that the tinnitus symptoms somehow became worse 15-20 years ago. In light of the veteran's statements, the VA audiologist issued an addendum in June 2006, in which he stated "[d]ue to the discrepancies in the veteran's report about onset of tinnitus, I cannot resolve this matter without resorting to mere speculation." The Board thus is confronted with inconsistencies in the veteran's self report of onset of tinnitus symptoms (in service or twenty years after service), plus an objective record which supports neither assertion. As noted above, the service medical records are absent any mention of tinnitus. The record in fact does not document a single complaint of tinnitus until the veteran's August 2005 claim for VA benefits. Crucially, the first documented diagnosis of tinnitus was the December 2005 VA audiological examination report. In essence, the veteran's claim rests on his own recent statements that his tinnitus has existed since service, which were made in connection with hi claim for monetary benefits from VA. His statements are outweighed by the lack of objective evidence of tinnitus for more than fifty years after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]; see also 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]. See also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. The Board finds the veteran's statements to be lacking in credibility and probative value. Based on the record, the Board finds that the December 2005 opinion (which discounts the veteran's military service as a cause for his tinnitus) is consistent with the evidence of record, to include the veteran's own statements to the examiner, and is therefore both competent and probative. The subsequent June 2006 addendum, based on the veteran's revisionist reporting of his own medical history, does not reach any conclusion and therefore does not serve to nullify the prior opinion. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [medical evidence which is speculative, general or inconclusive in nature cannot support a claim]. To the extent that the veteran contends that his current tinnitus is related to his military service, it is now well- established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (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]. The statements offered by the veteran are not competent medical evidence and do not serve to establish medical nexus. See Voerth at 199. [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus]. As noted in the Introduction, the veteran has been afforded ample opportunity to furnish medical nexus evidence to VA. No competent evidence of medical nexus has been submitted. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim of entitlement to VA benefits]. Further, the Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). With respect to the veteran's recent statements to the effect that tinnitus began during service and continued for decades thereafter, the Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-121 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Specifically, there is no competent medical evidence that the veteran was diagnosed with or treated for tinnitus for more than fifty years after his separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, Hickson element (3) is not met and the veteran's tinnitus claim fails on that basis. In conclusion, for reasons and bases expressed above, the Bord concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for tinnitus. The benefit sought on appeal is accordingly denied. 2. Entitlement to service connection for COPD, to include as secondary to asbestos exposure. Relevant law and regulations The law and regulations generally pertaining to service connection have been set forth above and will not be repeated here. Asbestos exposure 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). Analysis The veteran contends that his current COPD is a result of asbestos exposure in service. As detailed above, in order to establish service connection for the claimed condition, there must be (1) medical evidence of a current disability; (2) evidence of the in-service incurrence or aggravation of a disease or injury or evidence of a service-connected disability; and (3) medical evidence of a nexus between (1) and (2). See Hickson, supra. With respect to Hickson (1), current disability, the medical evidence of record, including the May 2006 VA medical examination and the VA treatment records beginning in October 1999, establishes that the veteran has a diagnosis of COPD. The Board notes that the May 2006 VA examiner, in reviewing the numerous chest x-rays in VA facilities dating back to 1995, noted that there were no entries concerning any asbestos-related findings. Element (1), current disability has, therefore, been met only insofar as COPD has been diagnosed, but not as to any specific medically identified residuals of asbestos exposure. With respect to Hickson (2), disease or injury in service, the Board will separately address the matters of in-service disease and in-service injury. Regarding disease, the veteran's service medical records do not indicate that the veteran complained of or was treated for lung problems in service. Indeed, the medical evidence indicates that lung problems were first indicated in 1999, more than forty-five years after the veteran left military service in 1952. With respect to in-service injury, the alleged injury is exposure to asbestos in service. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The veteran's contention is that he was exposed to asbestos aboard ship. The Board cannot disagree with the veteran's contention in light of the provisions of M21-1, described in the law and regulations section above. The veteran served aboard a World War II-era LST, and VA has recognized that such vessels contained asbestos. Element (2) has therefore also been met. The critical element is Hickson element (3), medical nexus. The only competent medical opinion is that of the May 2006 VA examiner, and it is against the veteran's claim. The May 2006 VA examiner took into account the veteran's report of asbestos exposure. The examiner stated that it was less likely than not that any lung problems were due to his military service. Rather, the examiner indicated that the veteran's history of cigarette smoking was very likely the cause of his COPD. As was noted above, that there was no x-ray evidence of asbestos residuals in the veteran's lungs. There is no competent medical evidence to the contrary. The veteran himself cannot supply the required medical nexus evidence. See Espiritu v. Derwinski, supra; see also 38 C.F.R. § 3.159(a)(1) (2007) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has failed to do so. In short, element (3) has not been met, and the veteran's claim fails on that basis. The Board further observes in passing that the veteran does not appear to contend that the only medically identified cause of his lung problems, tobacco use, was related to his naval service. In any event, service connection for diseases arising out of the use of tobacco products is specifically precluded by law. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300 (2007). In sum, for reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the veteran's claims of entitlement to service connection for tinnitus and COPD, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. The benefits sought on appeal are denied. ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for chronic obstructive pulmonary disease, to include as secondary to in-service asbestos exposure, is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs