Citation Nr: 0829186 Decision Date: 08/27/08 Archive Date: 09/04/08 DOCKET NO. 07-37 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for degenerative joint disease (DJD) of the bilateral arms and legs secondary to cold exposure. 2. Entitlement to service connection for a lung disorder secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from July 1962 to July 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision prepared by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, for the Detroit, Michigan, RO. The RO, in pertinent part, denied the benefits sought on appeal. The Board has recharacterized the issues on appeal as they appear on the cover page of the instant decision. The veteran presented testimony before the Board in April 2008. The transcript has been associated with the claims folder. The claim of entitlement to service connection for a lung disorder secondary to asbestos exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. DJD of the bilateral arms and legs is not related to any incident of the veteran's active military service, to include cold weather exposure. CONCLUSION OF LAW The criteria for the establishment of service connection for DJD of the bilateral arms and legs are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The RO issued VCAA letters to the veteran in September 2006 and November2006, prior to the decision on appeal. The veteran was notified of: the information or evidence necessary to substantiate the claim; the necessary information or evidence, if any, the claimant was to provide; and the necessary information or evidence, if any, the VA will attempt to obtain. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran was notified of the evidence necessary to establish a disability rating and effective date in September 2006 and November 2006. The claim was readjudicated in the October 2007 statement of the case (SOC) VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. The claims file includes the veteran's service medical and personnel records, post-service private treatment records, a report of VA examination, and the transcript from the April 2008 Board hearing. Additional private medical records were received after the October 2007 SOC was issued. The veteran waived initial RO adjudication of the newly submitted evidence. As such, a remand for preparation of a supplemental statement of the case (SSOC) is not necessary. 38 C.F.R. § 20.1304(c). The VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim. There is no indication that there is additional evidence to obtain or additional notice that should be provided. There is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The veteran contends that he has DJD of the bilateral arms and legs as a result of active duty service. Specifically, he asserts that he was exposed to cold weather while serving in Korea, and that this exposure has caused his DJD. As service connection is currently in effect for frostbite with residual cold hypersensitivity and mild peripheral neuritis of the bilateral upper and lower extremities, exposure to cold weather has previously been conceded by VA. However, having carefully considered the veteran's claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal as to this issue will be denied. In this regard, service medical records are wholly devoid of complaints, treatment, or diagnoses of DJD of the bilateral arms and legs. Post-service, DJD of the bilateral hands and feet was first diagnosed upon VA examination in January 2007. This is some 42 years after the veteran's separation from active service and clearly outside the one-year presumptive period for arthritis. 38 C.F.R. §§ 3.307, 3.309. This lengthy period without evidence of complaints of or treatment for arthritis is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). While the veteran currently has DJD involving the hands and feet, there is no medical evidence of record indicating that the arthritic problems are related to any aspect of the veteran's period of service. Despite a current diagnosis of DJD of the bilateral hands and feet, the weight of the objective evidence of record does not support the critical third component of the Hickson inquiry enumerated above. In fact, the only medical opinion of record regarding the etiology of the DJD is against the claim. Specifically, when the veteran underwent a cold injuries protocol examination in January 2007, the examiner diagnosed degenerative joint disease involving both he hands and feet, but gave the opinion that the degenerative joint disease was "not likely related to cold injury during the service, as there is no loss of tufts in the X-rays." The Board notes that the opinion was offered after examination of the veteran, complete review of the veteran's claims file and with full knowledge of the veteran's history of cold exposure. This opinion as to the lack of connection to service stands uncontroverted by any other medical opinion or evidence of record. While the veteran contends he has DJD of the bilateral arms and legs that has been present since his period of active military service and related thereto, his statements regarding the diagnosis and etiology of his current DJD do not constitute competent evidence of a medical diagnosis or nexus opinion because the veteran has no medical training. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for DJD of the bilateral arms and legs secondary to cold exposure is denied. REMAND The veteran asserts that service connection for a lung disorder is warranted because he was exposed to asbestos while on active duty, has been diagnosed with asbestosis and pulmonary fibrosis, and did not have any post-service asbestos exposure. The veteran contends that his exposure to asbestos occurred while stationed in Korea and at Fort Hunter-Liggett in California where he lived in Quonset huts insulated with asbestos and performed duties as an ammunition specialist going in and out of ammunition bunkers also insulated with asbestos. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997) (hereinafter "M21-1"). Also, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos- Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Here, the evidence does not specifically show, nor does the veteran allege, that he had an occupation during service with higher incidents of asbestos exposure (e.g. mining, milling, work in shipyards, demolition of old buildings, 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.) Indeed, the veteran's service personnel records show his military occupational specialty was a light weapons infantryman policeman. Instead, as noted, the veteran's argument is based upon indirect exposure from living in Quonset huts and going into ammunition bunkers he believed were insulated with asbestos. In support of his claim, the veteran has submitted records from Dr. MH dated in September 2007, which show the veteran had anterior pericardial thickening associated with asbestos- related disease. Dr. MH further indicated there was sufficient evidence to support diagnoses of asbestosis, emphysema, hypoxia, asthma, and possibly pulmonary hypertension. He further submitted records from Dr. BWF dated in February 2008, which reveal that he was diagnosed with severe chronic obstructive pulmonary disease (COPD) secondary to pulmonary fibrosis. Dr. BWF opined the veteran's lung disorder was directly related to asbestosis exposure. As noted, the veteran asserts that he did not have any post- service asbestos exposure; however, the Board notes the veteran testified that his post-service employment included working for the City of Detroit wiring apartments. See Board Transcript at 25. The evidence also shows the veteran smoked for 40 years, but recently stopped. Although the record contains a medical opinion addressing the veteran's current diagnosis of asbestosis, the veteran's military asbestos exposure, if any, has not been confirmed. Thus, a remand is necessary to determine whether military records demonstrate evidence of asbestos exposure in service and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Thereafter, a medical opinion is necessary to make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should take all appropriate action to develop evidence regarding the veteran's asbestos exposure before, during, and after his active service, to specifically include seeking information as to whether any Quonset huts and ammunition bunkers at the Headquarters Company, Second Battalion, Fourth and Seventh Cavalry Divisions in Korea during the period from February 1963 and February 1964 and at Fort Hunter- Ligget in California from March 1964 to July 1965 were constructed of materials containing asbestos. 2. The veteran should then be afforded a VA examination by a pulmonary specialist to determine the current nature and likely etiology of his lung disease. The claims folder must be made available for review by the examiner in conjunction with the examination. Any indicated studies should be conducted. Based on the examination and review of the record, the examiner should provide a medical opinion as to whether the veteran has any lung disability due to any aspect of his period of service - including asbestos exposure if this is verified. If it is found that the veteran does have asbestos-related disability, the examiner should further opine whether such disability is, at least as likely as not (50% or greater), related to asbestos exposure in service. The examiner should specifically comment upon the role of any pre or post-service asbestos exposure. The examiner must explain the rationale for all opinions given. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence, to specifically include the private medical records submitted after the October 2007 SOC was issued, and legal authority. 4. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations and affords them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this remand is to assist the veteran with the development of his claim. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examinations, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs