Citation Nr: 0832569 Decision Date: 09/23/08 Archive Date: 09/30/08 DOCKET NO. 06-04 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a lung disability, claimed as due to asbestos exposure. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from December 1954 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In January 2006, the veteran submitted his substantive appeal, via Form 9, but he did not indicate whether he wanted a Board hearing. On an attached statement, the veteran's representative requested a Travel Board hearing; however, in August 2006, the veteran clarified that he did not want a Board hearing. The Board, then, finds that all due process has been satisfied with respect to the veteran's right to a hearing. FINDINGS OF FACT 1. The competent and probative evidence of record preponderates against a finding that the veteran has a current lung disability that is due to any incident or event in his military service or is a result of exposure to asbestos in service. 2. The competent and probative medical evidence of record preponderates against a finding that the veteran has current hearing loss that is due to any incident or event in active military service, and sensorineural hearing loss as an organic disease of the nervous system is not shown to have been manifested to a compensable degree within one year after separation from service. CONCLUSIONS OF LAW 1. A lung disability was not incurred in or aggravated by service, to include as due to asbestos exposure. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Hearing loss was not incurred in or aggravated by service, nor may sensorineural hearing loss, as an organic disease of the nervous system, be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted (U.S. June 16, 2008) (No. 07-1209). In this case, the VCAA duty to notify was satisfied by way of letters sent to the veteran in September 2004 and December 2004 which fully addressed all required notice elements and was sent prior to the initial RO decision in this matter. The letter informed the veteran of what evidence was required to substantiate his claims and of the veteran's and VA's respective duties for obtaining evidence. Although no longer required, the veteran was also asked to submit evidence and/or information in his possession to the RO. Any special development required for the veteran's asbestos claim will be addressed in the analysis section of this decision. To whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claims herein are being denied, such issues are moot. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. The Board also finds that VA has satisfied its duty to assist the veteran in the development of the claim. The RO has obtained VA outpatient treatment records dated from September 1997 to October 2005. It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In this regard, the veteran has asserted that he received treatment from The Hearing Aid Center in Roseville, CA. The RO attempted to obtain the veteran's treatment records; however, the company responded that the veteran was never seen in that office for hearing loss. The company suggested the RO contact The Sierra Hearing Services, as they have a different suite number but are frequently mistaken for each other. The RO attempted to obtain treatment records from Sierra; however, they responded that they do not have any records showing the veteran was seen in their office. The veteran has not identified any other private medical records that would assist him in substantiating his claim. Therefore, the Board finds VA has satisfied its duty to assist the veteran in obtaining all obtainable evidence from private treatment sources. It is therefore the Board's conclusion that no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran 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). Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Facts and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2007). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also 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. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, including organic diseases of then nervous system (e.g., sensorineural hearing loss) become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inccurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). The veteran has asserted that, during his military service in the Navy, he worked as a machinist's mate, which required that he work in boiler and engine rooms, hydraulic areas, and gas plants while aboard ship. He has asserted that he was exposed to asbestos, gas, and hydraulic oil fumes, as well as significant noise, as a result of his duties, and he believes he currently has a lung condition and hearing loss that were incurred as a result of such exposure. A. Lung Disability The veteran has specifically asserted that he currently suffers from a lung disability that is due to his in-service asbestos exposure. 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 (Oct. 3, 1997) (hereinafter Manual "M21- 1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 2000 (April 13, 2000). The Board notes that the aforementioned provisions of Manual M21-1 were 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. 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. 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. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that Manual M21-1, Part VI, paragraph 7.68 does not create a presumption of exposure to asbestos for any class of veterans. Rather, M21-1 suggests that asbestos exposure is a fact to be determined from the evidence. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. VAOPGCPREC 04-2000. As noted, the veteran has consistently asserted that his service in the Navy involved working in boiler and engine rooms, hydraulic areas, and gas plants while aboard ship. This type of service would make it probable that the veteran worked in the vicinity of asbestos, used as an insulator and fire retardant, in service. However, the record also reflects that the veteran's post-service employment, included working in a shipyard and for Ford Motor Company. Even if the Board were to concede that the veteran was exposed to asbestos during service, there is no medical evidence of record which shows the veteran has an asbestos-related disease. Nor is there any medical evidence that relates any currently manifested respiratory disorder to the veteran's claimed in-service asbestos exposure. The veteran's service treatment records (STRs) show that, beginning in January 1955, the veteran complained of a myriad of symptoms, including chest pain, sore throat, and cough, and was eventually diagnosed with acute pharyngitis in March 1956. The STRs do not contain any subsequent complaints or treatment regarding pharyngitis or any asbestos-related disability. At separation from service, the veteran's lungs and chest were normal and he did not lodge any pertinent complaint as to any chronic respiratory disorder. The first time the veteran is shown to have been diagnosed with a lung disorder after service was in April 1999, at which time the veteran complained of persisting coughing and wheezing. It was noted that he was a smoker and that he had three parrots at home. He was advised to quit smoking and to move his birds outside. The assessment was asthma versus chronic obstructive pulmonary disease (COPD). Post-service treatment records show the veteran has been variously diagnosed with bronchitis, asthma, emphysema, and COPD. See VA outpatient treatment records dated September 1997 to October 2005. None of these disorders, however, is recognized as resulting from asbestos exposure, and there is no competent medical opinion of record which relates any of these disorders to his claimed in-service asbestos exposure. In addition, the Board notes that the veteran has received significant medical treatment for his respiratory disorders, and no medical professional has ever reported asbestos- related changes or suggested that his current lung disorders are due to asbestos exposure. See id. Based upon the foregoing, the Board finds the preponderance of the evidence is against the veteran's claim for service connection for his lung condition as due to asbestos exposure. As noted, the veteran's diagnosed respiratory disorders are not recognized as related toexposure to asbestos, and there is no competent medical opinion of record relating his current respiratory disorders to his claimed in- service asbestos exposure. The Board does not doubt the veteran sincerely believes he has a lung condition due to exposure to asbestos; however, he lacks the medical expertise necessary to diagnose a specific medical disorder or conclude any condition is etiologically related to prior asbestos exposure. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Without medical evidence of a disability related to exposure to asbestos, service connection for a lung disability as a result of exposure to asbestos is not warranted. See VAOPGCPREC 04-2000. Finally, the Board has also considered whether service connection may be granted on a direct basis. In this regard, the Board again notes the veteran received treatment for one instance of pharyngitis during service. However, the STRs are negative for any subsequent complaints or treatment related to pharyngitis or any other respiratory disorder, and his lungs and chest were normal at separation from service. In addition, the veteran is not shown to have been diagnosed with a respiratory disorder, e.g., asthma versus COPD, until April 1999, which is more than 40 years after he was separated from service. See VA outpatient treatment records dated September 1997 to October 2005. This gap of many years in the record preponderates against a finding that his in- service treatment of pharyngitis caused a chronic disorder, and also rebuts any assertion of continuity of symptomatology since separation from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board, thus, finds that the in- service treatment of pharyngitis was acute and transitory and did not result in a chronic respiratory disability. In considering the veteran's claim on a direct basis, the Board also notes that no medical professional has ever related any currently diagnosed respiratory disorder to the veteran's military service. Therefore, entitlement to service connection for a lung disorder on a direct basis is not warranted. In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence is against the grant of service connection for a lung condition, to include as due to asbestos exposure, and the benefit-of-the- doubt is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Hearing Loss 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, 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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. Even if disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Upon review of the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The veteran's service treatment records are negative for any complaints, treatment, or findings related to hearing loss. In this regard, the Board notes that, at the veteran's enlistment examination in December 1954, and at his separation examination in November 1958, his ears were normal on clinical evaluation and his bilateral hearing was normal on whispered voice test. The Board acknowledges that the lack of any evidence showing the veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court has held where there [is] no evidence of the veteran's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley, 5 Vet. App. 155, 160 (1993) (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Review of the record reveals the veteran has not submitted any medical evidence which shows he currently suffers from a hearing impairment. In this regard, the Board notes he has asserted that he received treatment from The Hearing Aid Center in Roseville, CA. However, the company has indicated that the veteran was not seen in that office. The veteran has not identified any other medical evidence that would show he has received treatment for a hearing impairment since service and has a current diagnosis of hearing loss. Therefore, the Board finds there is no competent medical evidence of a current diagnosis of hearing loss. Without proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, as noted, there is no evidence of record which shows that the veteran has complained of or received treatment for a hearing impairment at any time since he was separated from service. The Board notes the veteran has not been afforded a VA examination in conjunction with this claim; however, we find a VA examination and/or opinion is not necessary because the evidence does not show the veteran suffered an event, injury, or disease in service or within his first post-service year, to which a current diagnosis of hearing loss can be attributed. As noted, the veteran's hearing was normal at his entrance and separation examinations and there are no complaints or treatment for hearing loss during or after service. Therefore, a VA examination is not needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for hearing loss on a presumptive basis is not available in this case, because, as noted, there is no indication in the evidence of record that the veteran manifested an organic disease of the nervous system, shown to include sensorineural hearing loss, to a compensable degree within his first post-service year. See 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). In this regard, the Board again notes that at the veteran's separation examination, his hearing was normal and there is no competent evidence of record which shows that he suffered from hearing loss during his first post-service year. Therefore, the Board finds the preponderance of the evidence is against the grant of service connection for hearing loss, and there is no reasonable doubt to be resolved. See Gilbert, supra. ORDER Entitlement to service connection for a lung disability, claimed as due to asbestos exposure, is denied. Entitlement to service connection for hearing loss is denied. _____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs