Citation Nr: 0818917 Decision Date: 06/09/08 Archive Date: 06/18/08 DOCKET NO. 05-28 440A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for asbestos-related pulmonary disability. 2. Entitlement to service connection for bilateral hearing loss disability 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and M.M. ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from September 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 20044 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO in February 2008. The issues of entitlement to service connection for asbestos- related pulmonary disability and PTSD are addressed in the REMAND that follows the order section of this decision. FINDING OF FACT Hearing loss disability was not present in service or within one year after the veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW Hearing loss disability was not incurred in or aggravated by active duty, and its incurrence or aggravation during active duty may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking service connection for hearing loss. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require 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 the Secretary 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. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he should submit any pertinent evidence in his possession, by letter mailed in June 2003, prior to its initial adjudication of the claim. Although the veteran was not provided notice with respect to the disability-rating or effective-date element of the claim until March 2006, after the initial adjudication of the claim, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for hearing loss disability. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claim is no more than harmless error. The Board also notes that treatment records, including pertinent VA and private medical records have been obtained to the extent possible. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The veteran testified before the undersigned that he had no other medical evidence in support of his claim. Both he and his mother indicated that records were unavailable from the facility where he received treatment for his hearing years ago. The Board is also unaware of any outstanding evidence that could be obtained to substantiate this claim. The Board finds that the duty to assist has been satisfied. The Board is mindful that the RO has not obtained service treatment records, but finds that the RO has nonetheless satisfied its duty to obtain these records. The record shows that the RO made two requests to the National Personnel Records Center (NPRC) for those records with negative results. The RO issued a formal finding of unavailability in May 2007, and it is clear that further efforts to obtain these records would be futile. Accordingly, the Board will proceed with appellate review, mindful that when a veteran's records have been lost or are otherwise unavailable, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the- doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). Where a veteran served for at least 90 days during a period of war and manifests a organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran maintains that his only exposure to acoustic trauma was during hostile fire when a grenade went off next to him. As noted above, service treatment records are unavailable. Post service treatment records from the Tampa VA Medical Center show initial diagnosis of asymmetric bilateral sensorineural hearing loss in September 2003, more than 30 years after service. Although the veteran reported a history of noise exposure in service as well as a history of occupational noise exposure, the audiologist did not opine that the veteran's hearing loss was related to service. Instead, it was simply noted that the test results were consistent with noise exposure and age-related change. At the February 2008 hearing before the undersigned, the veteran was informed that he should submit medical evidence linking his current hearing loss disability to his active service. The record was held open for the amount of time requested by the veteran but he failed to submit any such medical evidence. In essence, the evidence of a nexus between the veteran's current hearing loss disability and his active service is limited to the veteran's own statements and those of his mother at the February 2008 hearing. This is not competent evidence of the alleged nexus since laypersons, such as the veteran and his mother, are not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). It is unclear from the veteran's service records whether the veteran engaged in combat with the enemy for purposes of the combat presumption. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007). However, the lack medical evidence of diagnosis of hearing loss or treatment for hearing loss until more than 30 years after service and the lack of any supporting medical opinion as to a relationship between the current hearing loss and any acoustic trauma is compelling evidence against the claim, even assuming that a grenade exploded near the veteran. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. ORDER Service connection for bilateral hearing loss disability is denied. REMAND The veteran has alleged that he has a pulmonary disorder as a result of in-service asbestos exposure. He claims he was exposed to asbestos coincident with his naval service as a Quartermaster and deckhand on the USS Winston, which he contends involved removing asbestos-lined insulation from pipes. He recently testified that he worked as a sandblaster and painter following service. He explained that he used no air mask while in the Navy, but he did wear one in his post service work. VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. Furthermore, it states that the latency 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 service connection for disability related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether service records evidence asbestos exposure during service, develop evidence concerning whether 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). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. The post-service medical evidence is inconsistent, with a diagnosis of an asbestos-related respiratory disorder by a private medical source in 2002, and a July 2004 VA chest X- ray showing a stable finding with no interstitial fibrosis. The veteran has reported that he was a cigarette smoker up until fairly recently. In light of the foregoing, the Board finds that the veteran should be afforded a VA examination to determine whether any currently present pulmonary disorder is etiologically related to service asbestos exposure. As to PTSD, the veteran recently submitted information regarding the history of the USS Winston from the website www.navsource.org in support of his testimony. He testified that the ship was in hostile waters in Vietnam from March through May 1966, when he was aboard. He noted that his ship had been trapped in the harbor around Hue. The ship's documented history shows it encountered hostile attacks during this time period. Thus, the veteran's stressor that he was subject to enemy attack has been verified. His other alleged stressor, that one of his friends was killed due to a hand grenade accident, has not been verified because the last name was not known. However, as one of the stressors is verified, the Board finds that a VA examination is warranted, to determine whether he has PTSD based on the verified stressor. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The veteran should be scheduled for a VA examination by a physician with appropriate expertise to determine the nature, extent and etiology of all currently present pulmonary disorders. The claims folder must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report. Any indicated studies should be performed. With respect to each currently present pulmonary disorder, the examiner should opine as to whether there is a 50 percent or better probability that the disorder is etiologically related to the veteran's exposure to asbestos in service. The rationale for all opinions expressed should also be provided. 2. The veteran also should be scheduled for examination by a psychiatrist or a psychologist to determine whether he has PTSD due to the verified stressor described earlier in this remand. The claims folder must be made available to and reviewed by the examiner. A notation to the effect that this record review took place should be included in the report. Any indicated tests should be performed. If PTSD is diagnosed, the examiner should identify the elements supporting the diagnosis. If PTSD is not diagnosed, the examiner should explain why the veteran does not meet the criteria for this diagnosis. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs