Citation Nr: 0829273 Decision Date: 08/28/08 Archive Date: 09/04/08 DOCKET NO. 04-43 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a fungal infection of the lungs, to include as due to asbestos and mustard gas exposure. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran had active service from April 1968 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama, denying service connection for a fungal infection of the lungs. The veteran was afforded a hearing before a Decision Review Officer (DRO) at the Montgomery, Alabama RO on January 14, 2008. A copy of the transcript from this hearing has been incorporated with the record. The veteran was also scheduled for a hearing before a Board Member on August 7, 2008. However, the veteran failed to appear for this hearing, and no motion to reschedule was filed. As such, the veteran's request for a Board hearing is deemed withdrawn. FINDINGS OF FACT 1. The evidence does not establish that the veteran was exposed to asbestos or mustard gas during his active military duty. 2. The veteran's fungal infection of the lungs is not related to the veteran's active military service. CONCLUSION OF LAW A lung disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.316 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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 of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the duty to notify was satisfied by way of a letter sent to the veteran in October 2003 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. VA also sent a letter to the veteran detailing the necessary criteria for establishing a service connection claim based on mustard gas exposure. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, no examination is necessary in order to adjudicate the claim of service connection for a lung disorder because there is no evidence to satisfy the second and third criteria discussed above. Specifically, there is no evidence establishing that an event, injury, or disease occurred in service and there is no indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability. Finally, the July 1986 competent medical evidence of record is alone sufficient for the Board to make a decision on this claim. Therefore, a medical examination would serve no useful purpose in this case. The veteran was not prejudiced by the lack of VA examination. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the veteran's service medical records. VA also obtained the veteran's private medical records, as well as a copy of the transcript of the veteran's 2008 hearing transcript. Significantly, neither the appellant nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder becomes manifest 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 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, 1137; 38 C.F.R. §§ 3.307, 3.309 (2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Asbestos Claims As to claims involving service connection for asbestos- related disease, there are no special statutory or regulatory provisions. In McGinty v Brown, 4 Vet. App. 428 (1993), the Court, noting the absence of specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, observed that some guidelines for compensation claims based on asbestos exposure were published in DVB Circular 21-88-8, dated May 11, 1988. The DVB Circular was subsequently rescinded, but its basic guidelines were found in the Veteran's Benefit Administration Manual M21-1, Part VI, 7.21, now reflected in M21-1 Manual Rewrite (M21-1 MR), Part IV, Sub part ii, Chapter 2, Section C, Subsection (f). The manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. These guidelines further note that inhalation of asbestos fibers can produce fibrosis and tumors, that the most common disease is interstitial pulmonary fibrosis (asbestosis), and that the fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, cancers of the gastrointestinal tract, cancers of the larynx and pharynx, and cancers of the urogenital system (except the prostate). See M21-1, Part VI, 7.21(a), p. 7-IV-3 (January 31, 1997); see also Ennis v. Brown, 4 Vet. App.523 (1993). It is noted that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancers, and that the risk of developing bronchial cancer is increased in current cigarette smokers who had asbestos exposure. Id. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. It is also noted that the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, that an asbestos- related disease can develop from brief exposure to asbestos, and that there is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. M21-1, Part VI, 7.21(b), p. 7- IV-3 (January 31, 1997). Mustard Gas Claims Exposure to certain specified vesicant agents during active military service, together with the subsequent development of certain diseases, is sufficient to establish service connection in the following circumstances: (1) full-body exposure to nitrogen or sulfur mustard during active military service, together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, nasopharyngeal cancer, laryngeal cancer, lung cancer (excluding mesothelioma), or squamous cell carcinoma of the skin; (2) full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma, or chronic obstructive pulmonary disease (COPD); and (3) full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. 38 C.F.R. § 3.316(a). Service connection will not be established under 38 C.F.R. § 3.316 if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316(b). If the criteria for presumptive service connection under the provisions of 38 C.F.R. § 3.316 are not met, a veteran may still establish service connection by proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Establishment of service connection on a direct basis requires competent medical evidence relating a claimed disability to mustard gas exposure during the veteran's period of active service. Due to the secret nature of some chemical warfare testing completed during World War II, the development of evidence regarding purported exposure during such testing might often be difficult. VA's Adjudication Procedure Manual, M21-1, Part III, Chapter 5, Subchapter II, Section 5.18, which addressed development of claims involving allegations of exposure to mustard gas and Lewisite, was rescinded in December 2005. The replacement section of the new manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, Topics 20-22, however, provides information concerning the development of claims involving allegations of exposure to mustard gas and Lewisite during active service. The M21-1MR Manual indicates that VA has lists of service department personnel who were subjected to chemical weapons testing and provides a point of contact at the VA Central Office Rating Procedures Staff where regional office staff can go to ascertain if the veteran's name appears on any of the lists. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section F, Topic 22 (2005). Facts and Analysis The veteran contends that he is entitled to service connection for a fungal infection of the lungs, due to his claimed exposure to asbestos and mustard gas. However, upon reviewing the record, the Board finds no credible evidence indicating that the veteran was ever exposed to asbestos or mustard gas. Regardless, the competent medical evidence of record establishes that the veteran's lung disorder is a result of subsequent non-service related factors, and not a result of exposure to asbestos or mustard gas. According to the veteran's January 2008 hearing transcript, the veteran believes he was exposed to asbestos during his military service. The veteran described pipes wrapped in asbestos inside his barracks. He indicated that he worked to maintain these pipes, and that he was able to see particles of asbestos coming off of the pipes. The veteran also noted in an October 2003 letter to VA that he was exposed to mustard gas during training. The veteran has provided no additional information on how or when he was exposed to mustard gas. While the veteran may believe that he was exposed to asbestos and mustard gas during service, there is no objective evidence of exposure. According to the veteran's September 1969 separation due to personal hardship examination, the veteran's lungs and chest were described as normal. The veteran indicated in the report of his medical history that he did not have, nor had he ever had, shortness of breath, pain or pressure in the chest or chronic cough. The record also contains no evidence of any residual effects from any potential asbestos or mustard gas exposure. While the above evidence suggests that the veteran was not exposed to asbestos or mustard gas, it does not conclusively rule out the possibility of exposure. However, regardless of whether the veteran was or was not ever exposed to asbestos or mustard gas, mere exposure to a potentially harmful agent is insufficient to establish eligibility for VA disability benefits. The question in a claim such as this is whether disabling harm ensued. The medical evidence must show not only a currently diagnosed disability, but also a nexus, or a causal connection between the current disability and the exposure to asbestos or mustard gas in service. Hickson v. West, 12 Vet. App. 247 (1999). Therefore, even if the veteran were exposed to asbestos or mustard gas, which the Board is not conceding, that fact alone is insufficient to establish service connection. The Board recognizes that the veteran was in fact diagnosed with a lung disorder in this case. Medical evidence from July 1986 assigned the veteran a diagnosis of a solitary pulmonary nodule of the right lung. This is not one of the disorders discussed above that are typically associated with exposure to asbestos, or are presumptively linked to mustard gas exposure. See M21-1, Part VI, 7.21(a), p. 7-IV-3 (January 31, 1997); 38 C.F.R. § 3.316(a). Even though the veteran's current disability is not one typically associated with asbestos, or presumptively associated with mustard gas exposure, service connection can still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, and as noted above, service connection may not be established if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316(b). In this case, there is affirmative evidence establishing that the veteran's current lung disorder is related to the inhalation of fungal spores after the veteran's separation from active duty. The veteran's lung disorder has been specifically linked to the inhalation of spores of Histoplasma capsulatum (H. capsulatum). According to the records of the veteran's surgery at the Flowers Hospital in July 1986, X-rays revealed a nodular density in the upper right lung. Surgery was performed to remove the density. Upon removal, the specimen was sent for laboratory study by a pathologist. The pathologist determined that the veteran's right lung had caseating granulomas with stainable yeast forms consistent with H. capsulatum. The specimen was again analyzed several days later, and the presence of H. capsulatum was confirmed. A diagnosis of a solitary pulmonary nodule due to infection with H. capsulatum was assigned. No reference to mustard gas or asbestos was made throughout the entire course of the veteran's treatment. The only evidence of record suggesting that the veteran's lung disorder may be associated to asbestos or mustard gas is the veteran's own testimony. The evidence, however, does not indicate that the veteran is qualified to offer such a medical opinion. As a layperson without the appropriate medical training and expertise, the veteran is not competent to provide a determination of the origins of a specific disorder). Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As such, the Board does not find the veteran's unsubstantiated opinion to be credible or persuasive. The medical evidence from the veteran's July 1986 lung surgery, however, is competent medical evidence. This evidence provides a nexus opinion between the veteran's lung disorder and the fungus H. capsulatum - not between the veteran's disorder and asbestos or mustard gas. Additionally, there is currently no evidence even suggesting that this fungus can somehow develop as a result of exposure to asbestos or mustard gas. Therefore, the preponderance of the evidence in this case establishes that the veteran's lung disorder is not related to asbestos or mustard gas exposure. As a final matter, the Board has considered whether there is any evidence of record suggesting that the veteran may have been exposed to H. capsulatum spores during his military service. However, upon review of the record, there is simply no evidence in support of that proposition. As noted above, there are no records from the veteran's active service indicating that he ever sought treatment for, or complained of, a lung disorder. In fact, there is no evidence that the veteran sought treatment for his lungs until July 1986 - approximately 17 years after the veteran's separation from active military duty. According to medical research, symptoms of histoplasmosis, the most common disease associated with H. capsulatum, are evident approximately 14 days after inhalation. See James D. Crapo et. al., Baum's Textbook of Pulmonary Diseases 342-43 (Lippincott Williams & Wilkins 2004). Therefore, the evidence establishes that the veteran would not have inhaled the spores during his active military duty and exhibited symptoms from the spores some 17 years later. As such, service connection may not be granted on this basis either. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The veteran's claim of entitlement to service connection for a fungal infection of the lung, to include as due to asbestos or mustard gas exposure, must be denied. ORDER Entitlement to service connection for a fungal infection of the lungs, to include as secondary to asbestos exposure or mustard gas exposure, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs