Citation Nr: 0832302 Decision Date: 09/22/08 Archive Date: 09/30/08 DOCKET NO. 04-23 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a breathing problem, to include as due to exposure to asbestos and herbicides. 2. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to October 1970. Service in Vietnam is evidenced in the record. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the veteran's claims for service connection. The veteran disagreed and perfected an appeal. In August 2004 the veteran and his then state service organization representative presented evidence and testimony to a local hearing officer at the RO. A transcript of that hearing has been associated with the veteran's VA claims folder. In June 2008 and in compliance with 38 C.F.R. § 20.607 (2007), the veteran submitted a written notice that he no longer wanted to be represented by the Kentucky Department of Veterans Affairs. In August 2008 and in compliance with 38 C.F.R. § 20.704(e) (2007), the veteran submitted a written notice that he withdrew his request for a hearing originally sought on the July 2004 VA Form 9 substantive appeal. Issues not on appeal In a May 2008 rating decision, the RO granted an increase in disability rating for service-connected PTSD; granted entitlement to individual unemployability benefits; continued current disability ratings for service connected left leg and left knee disabilities; denied service connection for residuals of removal of a growth on the intestine, sleep apnea, strep throat, arthritis, a cyst on the rib cage, enlarged prostate and kidney stones; and, deferred a decision on entitlement to service connection for nerve damage to the left leg. There is no notice of disagreement with any of the issues addressed in the May 2008 rating decision. Thus, none of the issues are in appellate status and they will not be addressed any further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. FINDINGS OF FACT 1. A preponderance of the evidence supports a conclusion that the veteran's breathing problem condition is unrelated to his active duty military service. 2. A preponderance of the competent medical and other evidence supports a conclusion that the veteran's skin condition is unrelated to his active duty military service. CONCLUSIONS OF LAW 1. Entitlement to service connection for a breathing problem, to include as due to exposure to asbestos and herbicides is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2007). 2. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran essentially contends that he was exposed to asbestos and agent orange during service, including service in Vietnam, and that the exposure has led to his breathing problems and skin condition. The Board will address preliminary matters and then address the issues on appeal. Duties to notify and assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1). In this case, the RO provided the appellant with notice in letters dated June 2002, June 2004, August and December 2006, and November 2007, in which the veteran was informed what was required to substantiate a claim for service connection. Specifically, the veteran was informed that the evidence needed to show that he had an injury in military service or a disease that began in or was made worse during military service or an event in service causing injury or disease; a current physical or mental disability; and, a relationship between the current disability and an injury, disease or event in military service. In addition, each letter notified the appellant in that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records. Further, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the veteran was specifically informed of how VA determined a disability rating and an effective date in letters dated March and August 200r, and November 2007. As indicated above, the veteran has received notice regarding the first three Dingess elements. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records (SMR), all pertinent VA medical records and all private medical records identified by the veteran are in the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In this case, the veteran was provided medical examinations, including in April 2004 and February 2008. VA has further assisted the veteran throughout the course of this appeal by providing him with statements of the case which informed him of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). As indicated in the Introduction, the veteran and his then representative presented evidence and testimony at a local hearing at the RO in August 2004. In addition, as indicated in the Introduction, the record reveals the veteran has withdrawn his request for a hearing before a Veterans Law Judge. The Board will therefore proceed to a decision on the merits. 1. Entitlement to service connection for a breathing problem, to include as due to exposure to asbestos and herbicides. 2. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides. Because the issues present similar evidence and identical law, they will be addressed in a single analysis. Relevant law and regulations Service connection - in general A disability may be service-connected if it results from an injury or disease incurred in, or aggravated by, military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2007); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychoses, when manifested to a compensable degree within the initial post service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (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). Service connection - herbicide exposure A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(6)(iii) (2007). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected. See 38 U.S.C.A. § 1116 (West 2002), 38 C.F.R. § 3.309(e) (2007). Whenever the Secretary of the Department of Veteran Affairs determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for purposes of service connection. 38 U.S.C.A. § 1116(b)(1) (West 2002). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 72 Fed. Reg. 112, 32395 (June 12, 2007). The Secretary has determined that prostatitis and peripheral neuropathy that is not acute and subacute peripheral neuropathy are not connected to exposure to herbicides. In addition, the Secretary has determined that skin conditions, to include xanthomas, and other than chloracne or other acneform diseases consistent with chloracne, are not connected to exposure to herbicides. See 38 C.F.R. § 3.309(e) (2007). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed.Cir. 1994). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, (see 38 C.F.R. § 3.309(e), but also must determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(d) (2007). Service connection - 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 As noted above, in order to establish service connection for a 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 supra. The Board will address each Hickson element in turn. With regard to element (1) and a breathing condition, the Board notes that the veteran's medical record is replete with complaints of difficulty breathing, however there is no record of any diagnosis of a breathing disorder. For example, a March 2004 VA treatment note reports that the veteran complained of wheezing and shortness of breath, along with nasal congestion. However, there is no diagnosis of a respiratory disorder. More specifically, a July 2002 VA Agent Orange assessment noted that a pulmonary function test was performed, but there was no diagnosis made of a breathing disability. In order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) [service connection may not be granted unless a current disability exists]. A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). In this case, the record does not contain evidence of a diagnosed breathing disability. The Board notes that the veteran has been under notice for more than six years that he needed to support his claim with evidence of a breathing disorder and no evidence has been forthcoming. It is the claimant's responsibility to support his claim. 38 U.S.C.A. § 5107(a) (West 2002). For those reasons, the Board finds that the veteran's claim for entitlement to service connection for a breathing problem fails for lack of a diagnosed disability. With regard to Hickson element (1) and the claimed skin condition, the Board notes that the July 2002 VA examination reports that the veteran complained of "severe itching of lower legs, knees to ankles, worse in winter . . . skin be comes dry and 'cracks' and becomes pale in color . . . 'bumps' come on hands, right greater than left, more noticeable on fingers 4 & 5 . . bumps are white and do not drain . . . they resolve in a few days but continue to recur." The veteran's skin was described by the examiner as "no lesions of hands, skin intact . . . has few acne like lesions of abdomen and anterior thighs . . . no lesions, scaling, abnormal skin color of lower legs." The Board observes that the July 2002 examiner did include a diagnosis of "paresthesis of the left thigh," but paresthesia is defined as "an abnormal touch sensation, such as burning, prickling, or formication, often in the absence of an external stimulus." See Dorland's Illustrated Medical Dictionary, 30th Edition, 2003 at page 1371. But there is no diagnosis of a skin disorder. The record contains several general compensation and pension examination reports which list that there were "no rashes or lesions suspicious of malignancy" observed during the examinations. See, for example: June and August 2002 and February 2008 VA examination reports. The record includes an April 2004 VA examiner's report which indicates that the veteran had a wart removed from his right thumb. However, no diagnosis was made of a chronic skin disorder. The Board further observes that to the extent the report could be construed as a diagnosis of a skin disorder, the examiner stated that it was not as likely as not that the wart condition was related to exposure to Agent Orange. In short, as above, there is no evidence that the veteran has a diagnosed skin disorder.. See Brammer supra. The Board observes that the veteran has submitted the October 2007 letter from Dr. G.D., M.D., as support that his "acne" is related to exposure to Agent Orange. First, the letter does not indicate that the veteran has a diagnosis of acne. Second, to the extent that it is relevant to this decision, the letter states: "[T]he etiology of the neuropathy and the acne is uncertain and is as likely as not related to agent orange exposure or other causes." This opinion is speculative at best. Dr. G.D. is uncertain about the etiology of undiagnosed acne, but states that it is "as likely as not" related to Agent Orange "or other causes." Such an opinion is of no probative value. The Court has held that medical evidence which is speculative, general or inconclusive in nature cannot support a claim. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). For those reasons, the Board finds that the veteran's claim for service connection for a skin condition fails for lack of a diagnosed skin disorder. In passing, the Board observes that the veteran, who served in Vietnam, is entitled to a presumption that he was exposed to Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(6)(iii) (2007). However, the presumption does not come into play in this case because there is no current diagnosed skin disorder. Similarly, the veteran's contention that his military job exposed him to asbestos from brake shoes may require VA to provide further assistance to determine whether he was exposed to asbestos during service. However, this obligation does not commence until there is a diagnosed pulmonary disorder; something that is lacking in this case. Thus, in order for the veteran to substantiate his claims in any future attempt, he must support the claims with diagnoses of a current pulmonary disorder and a current skin disorder. ORDER Entitlement to service connection for a breathing problem, to include as due to exposure to asbestos and herbicides is denied. Entitlement to service connection for a skin condition, to include as due to exposure to herbicides is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs