Citation Nr: 0835023 Decision Date: 10/10/08 Archive Date: 10/16/08 DOCKET NO. 05-02 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for lung scarring due to asbestos exposure. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from September 1959 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and February 2005 rating decisions of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran first filed for entitlement to service connection for trench mouth and a back disorder in July 1975. An April 1976 rating decision denied the veteran's claims and he did not appeal this determination. In November 2003, the veteran petitioned to reopen these claims. A June 2004 rating decision declined to reopen the claims. The veteran filed a timely notice of disagreement (NOD) in July 2004 and perfected his appeal in January 2005. During the pendency of this appeal, the veteran also filed a separate claim of entitlement to service connection for lung scarring due to asbestos exposure. A February 2005 rating decision denied the veteran's claim. He filed a timely NOD in April 2005 and perfected his appeal in May 2005. The RO combined these two appeals and advanced the three issues to the Board. In December 2005, the Board remanded these claims for a Travel Board hearing. The veteran participated in a Travel Board hearing in May 2006. Thereafter, the claims were returned to the Board for adjudication. In August 2006, the Board declined to reopen the veteran's claim of entitlement to service connection for trench mouth, reopened the claim of entitlement to service connection for a back disorder and remanded the claims of entitlement to service connection for lung scarring and a back disorder for additional evidentiary development. In February 2008, the Board remanded the veteran's claims for a new Travel Board hearing, as the Veterans Law Judge (VLJ) who conducted the May 2006 Travel Board hearing retired. In August 2008, the veteran participated in a second Travel Board hearing with the undersigned VLJ. Transcripts of the May 2006 and August 2008 hearings have been associated with the claims file. During the veteran's August 2008 Travel Board hearing, the veteran submitted additional evidence with the appropriate waiver of agency of original jurisdiction consideration. The Board notes that the additional evidence submitted is duplicative of evidence already associated with the veteran's claims file. FINDINGS OF FACT 1. The weight of the competent and probative evidence of record is against a finding that the veteran's lung scarring is the result of asbestos exposure in service. 2. The weight of the competent and probative evidence of record is against a finding that the veteran's back disability is the result of a disease or injury in military service. CONCLUSIONS OF LAW 1. Lung scarring due to asbestos exposure was not incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A back disorder was not incurred in or aggravated by military service. 38 U.S.C.A. § 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to and following the initial adjudication of the veteran's claims, letters dated in December 2004, March 2006, September 2006 and December 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The March 2006, September 2006 and December 2006 letters informed the veteran of how VA determines the appropriate disability ratings or effective dates to be assigned when claims are granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service treatment records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The veteran was afforded VA medical examinations in January 2007 to obtain opinions as to whether his lung scarring and back disorder could be directly attributed to service. Further examination or opinion is not needed on the claims because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service. This is discussed in more detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claims The veteran claims that his current lung and back disabilities are the result of his time on active duty service. Specifically, the veteran alleges that while stationed aboard the U.S.S. MEREDITH, he was thrown against the bulkhead during a severe storm off Cape Hatteras and later, when the U.S.S. MEREDITH was in dry dock for refitting, he alleges he was exposed to asbestos while working on pipes. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (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). For certain chronic disorders, to include arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). A. 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. See also 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). Concerning element (1) of Hickson, the medical evidence of record noted the slight prominence of pulmonary markings most likely due to scarring of the lung. See private treatment records, F.M.H., chest x-ray report, February 1, 2000. Regarding element (2) of Hickson, in-service incurrence of disease or injury, the Board will address each in turn. In- service incurrence of disease is not shown. The veteran's service treatment records are pertinently negative for any diagnosed pulmonary condition. However, affording the veteran the full benefit of the doubt, the Board finds that the veteran was exposed to asbestos as part of his duties aboard the U.S.S. MEREDITH. Element (2) of Hickson, incurrence of injury, has been satisfied to that extent. Turning to element (3), medical nexus, the Board notes the only evidence in support of the veteran's claim are lay statements alleging that the veteran's lung scarring is due to in-service asbestos exposure. The Board acknowledges that the veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his breathing difficulties. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Additionally, the statement provided by E.J.M. reported that the veteran assisted in asbestos removal. As VA has already conceded asbestos exposure, this statement does not bear substantially on the veteran's claim. The Board observes however, that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). However, the Board finds that the veteran's lay statements in the present case are outweighed by the negative service, post-service treatment records (indicating disability that began many years after service), and the negative VA medical opinion cited below. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Although the veteran has established that he has slight pulmonary markings most likely due to scarring, the evidence of record does not support a finding that this condition is the result of his time in service. While the Board does acknowledge the findings of F.M.H., of the pulmonary markings most likely due to scarring, there were no localized infiltrations, atelectasis or pleural effusions. The overall impression from the chest x-ray was no active cardiopulmonary disease. See private treatment records, F.M.H., chest x-ray report, February 1, 2000. Pulmonary function tests (PFTs) performed in September 2006 indicated the absence of any significant degree of obstructive pulmonary impairment and/or any restrictive ventilatory defect. See private treatment record, C.H., PFTs, September 8, 2006. The veteran participated in a VA respiratory examination in January 2007. X-rays performed in conjunction with the examination demonstrated a normal cardiomediastinal silhouette and no active disease was detected. The examiner diagnosed the veteran with mild obstructive lung disease. The examiner further opined that the chest x-ray and PFTs were not suggestive of asbestosis or restrictive lung disease. There was no evidence of pulmonary fibrosis or reduced lung volume, lung compliance or impaired gas transfer. The veteran did not meet the criteria for asbestosis. See VA respiratory examination report, January 17, 2007. A computed tomography (CT) scan of the chest also demonstrated no pulmonary nodules or mass, effusion, pneumothorax or pulmonary infiltrates. The reviewer's impression was several slightly enlarged lymph nodes in the mediastinum. See private treatment record, B.M.H., chest CT scan, January 25, 2007. A CT scan of the abdomen revealed minimal patchy ground-glass opacity at the left lung base. The reviewer noted that it was unclear if this represented subsegmental atelectasis or an area of inflammatory change. See private treatment record, B.M.H., abdominal CT scan, January 25, 2007. As indicated above, the veteran has failed to establish that he currently suffers from a respiratory disability that can be associated with asbestos exposure. Given the lengthy time period in which asbestosis may manifest, should the veteran later develop one of the aforementioned conditions, he is encouraged to reapply for VA benefits. The veteran's claim fails on element (3) of Hickson. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. B. Back Disorder The veteran has been diagnosed with Grade I spondylolisthesis of C5-6 and degenerative joint disease. Hickson element (1) is satisfied. With respect to element (2) of Hickson, in-service incurrence of disease and injury, the Board will address each in turn. The veteran's service treatment records are pertinently negative for any diagnosis of degenerative joint disease, cervical spine arthritis or any other condition of the veteran's back. Additionally, there is no medical evidence of degenerative joint disease, that is to say arthritis, in the one year presumptive period after service. See 38 C.F.R. § 3.309(a) (2007). In-service incurrence of disease is therefore not shown. Turning in-service incurrence of injury, the veteran asserts that he suffered an injury to his back when he was thrown against his ship's bulkhead during a storm. A January 1961 service treatment record refers to in-service complaints of pain in the costal vertebral angle with slight tenderness and no muscle spasm with a suspected muscle strain. Accordingly, in-service incurrence of injury is shown, and on that basis Hickson element (2) is satisfied. Moving to the final element, medical nexus, the veteran participated in a VA spine examination in January 2007, wherein the examiner noted that the veteran stopped working in 2003 as a plumber, primarily due to his bilateral knee disabilities. After a thorough review of the claims file, the examiner stated that the question of etiology could not be resolved without resorting to speculation. See VA spine examination report, January 17, 2007. The Board notes that the only evidence in support of the veteran's claim is lay statements alleging that his current back disorder is due to service. As noted above, the veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker, supra. The remaining evidence submitted by the veteran clearly establishes his current disabilities, but does not offer any opinion as to their nature and etiology. The veteran's claim fails on element (3) of Hickson. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. ORDER Entitlement to service connection for lung scarring due to asbestos exposure is denied. Entitlement to service connection for a back disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs