Citation Nr: 0936258 Decision Date: 09/24/09 Archive Date: 10/02/09 DOCKET NO. 07-37 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for emphysema with bronchitis (claimed as a lung disorder), to include as due to asbestos exposure. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to January 1965. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which denied service connection for a respiratory disorder, bilateral defective hearing, and tinnitus. The Board remanded the case to the RO for further development in December 2008. The case is once again before the Board for review. The issue of entitlement to service connection for emphysema with bronchitis (claimed as a lung disorder), to include as due to asbestos exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not shown to be etiologically related to active service. 2. The Veteran is not shown to have currently diagnosed tinnitus. CONCLUSION OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by active service, nor may sensorineural hearing loss be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In a March 2005 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. In the present appeal, VA did not provide the Veteran with VCAA notice of the type of specific evidence necessary to establish a disability rating or effective date prior to the initial rating decision. However, as the Board concludes below that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss and tinnitus, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any failure is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA and private treatment records, and Social Security Administration (SSA) records have been associated with the claims file. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. 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. These four factors are: (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. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States 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. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that a VA examination is not necessary. As the Board will discuss below, service treatment records do not reflect any findings related to hearing loss or tinnitus; there is no competent medical evidence of a diagnosis of tinnitus, and there is no indication that any current hearing loss is related to the Veteran's period of active service. Absent evidence that indicates that the Veteran has a current claimed disability related to symptoms in service, the Board finds that a VA examination is not necessary for disposition of the claim. In a June 2009 correspondence, the Veteran and his representative indicated that they had additional evidence to submit, and requested VA wait the full 30-day period to give the Veteran an opportunity to submit the evidence. No additional evidence has been received to date, and the Veteran has not identified any additional evidence for VA to obtain. VA and private treatment record dated from 1995 to 2009 have been associated with the claims file. The Board finds that VA has fulfilled its duty to assist the Veteran in the development of the claim. See 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). B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). Service connection may 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 C.F.R. § 3.303(d) (2008). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2008). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of these frequencies 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 (2008). Audiological evaluations completed at the time of the Veteran's June 1961 enlistment and January 1965 separation examinations reflect normal hearing with 15/15 on whispered voice testing. Service treatment records do not reflect any complaints relating to hearing loss or tinnitus in service. The Veteran's personnel records, Form DD-214, and service treatment records do not reflect combat exposure or any specific incidents of excessive noise exposure, nor has the Veteran reported any specific incident or incidents of noise exposure in service. The earliest post-service medical evidence of hearing loss disability was in 2008. The Board notes that this was 43 years after the Veteran's separation from service. VA treatment records dated in June 2008 and July 2008 show that the Veteran carried a diagnosis of sensorineural hearing loss, combined types; however, there is no audiological evaluation associated with the Veteran's diagnosis to confirm that he has a hearing loss disability for VA purposes in accordance with the provisions of 38 C.F.R. § 3.385. Sensorineural hearing loss was not incurred within one year of the Veteran's separation from service. There is no competent medical evidence in the record showing that any current hearing loss is etiologically related to the Veteran's period of service. Further, in the instant case, there is no current medical evidence of tinnitus. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). The record contains no evidence of tinnitus in service and the Veteran is not shown to have currently diagnosed tinnitus. In this regard, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Thus, while the Veteran can state that he has had problems with his ears, including hearing loss and tinnitus, his statements alone are insufficient to establish that he has a current diagnosis of hearing loss or tinnitus related to his military service. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Further, while the Veteran can state that during his naval service, he was exposed to deck crawlers, needle guns, and 40 mm guns aboard ship, as he is not a physician, his statements and testimony in this regard are not considered competent evidence to establish that he has a current diagnosis of either disorder which is related to military service. 38 C.F.R. § 3.159(a)(2); See also Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Accordingly, the competent and probative evidence shows the Veteran does not currently have hearing loss for VA purposes related to service, or a diagnosis of tinnitus related to his naval service. Therefore, service connection is not warranted for either claimed disorder. C. Conclusion Although the Veteran has medical evidence of a diagnosis of current hearing loss, the record provides no competent evidence showing that hearing loss, for VA purposes, was incurred or aggravated in service; there is no competent evidence of sensorineural hearing loss manifest within a year following the Veteran's separation from service; and the record contains no nexus between any current hearing loss and the Veteran's naval service. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran has bilateral hearing loss etiologically related to active service. The Veteran does not have currently diagnosed tinnitus, and the record provides no competent evidence showing that tinnitus was incurred or aggravated in service. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran has tinnitus etiologically related to active service. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2008). The Board remanded the present appeal in December 2008. The remand directed in pertinent part, that if the evidence received shows that the Veteran has asbestosis or an asbestos related disease, the AMC should take appropriate action consistent with consistent with VA Adjudication Procedure Manual, M2-1 (formerly M21-1), Part VI, para. 7.21 (Oct 3, 1997); VAOPGCPREC 4-00. See also Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The remand directed that this should include, if appropriate, a VA respiratory examination to determine the etiology of any identified asbestos-related disease. Although the record prior to remand showed diagnoses of emphysema and chronic obstructive pulmonary disease, more recently associated records show diagnoses, in pertinent part of interstitial fibrosis; chronic obstructive/restrictive pulmonary disease; possible interstitial pneumonitis; and pleural thickening in 2008. In this regard, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary 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 were included in the VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The United States Court of Appeals for Veterans Claims 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 the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers 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. Id. 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. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The Manual cited above notes that common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire proofing materials, and thermal insulation; further, some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. M21-1MR IV.ii.2.C.9.f. In this case, the Veteran contends that he was exposed to asbestos while stationed in Guantanamo Bay, grinding and cleaning the bottom of boats. The Veteran's service personnel records show that the Veteran was as a Seaman and a Boatswains Mate primarily aboard the USS Valcour (AVP-55). His records do not show an occupation that is normally associated with probable asbestos exposure. The Veteran's service personnel records moreover, do not reveal any additional MOS normally associated with a high risk of exposure to asbestos, and the record reflects that post- service, the Veteran had a many year history of being employed as a contractor, working in roofing, siding, remodeling, and performing concrete and electric work. However, the Board recognizes that it is not inconceivable that the Veteran worked in close proximity of asbestos while present aboard a ship. In the present case, additional medical evidence associated with the claims file shows that the Veteran has diagnoses, in pertinent part of interstitial fibrosis; chronic obstructive/restrictive pulmonary disease; possible interstitial pneumonitis; and pleural thickening in 2008. As some of these findings may be associated with asbestos exposure, the Board finds that a remand is necessary for a VA examination in compliance with the December 2008 remand order. See Stegall v. West, 11 Vet. App. 268, 270 (1998), (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the Board finds that a remand for an additional VA examination is necessary prior to readjudication of the appeal by the Board. Accordingly, the case is REMANDED for the following action: 1. The AMC should take appropriate action consistent with VA Adjudication Procedure Manual, M21-1MR (formerly M21-1), Part IV, subpart ii, Chapter 2, Section C; VAOPGCPREC 4-00. See also Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). This should include a VA respiratory examination to determine the etiology of any identified asbestos-related disease. All indicated tests and studies are to be performed. The claims folder must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. The examiner must provide a complete rationale and basis for any opinions offered including whether it is at least as likely as not that any identified asbestos-related respiratory disorder is etiologically related to the Veteran's naval service. If the examiner is only able to theorize or speculate as to this matter, this should be so stated. 2. The Veteran must be given adequate notice of the date and place of any requested examination. If feasible, a copy of all notifications should be associated with the claims folder. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have an adverse effect on his claim. 3. After all development has been completed, the RO should review the case again based on the additional evidence. If the benefits sought are not granted, the RO should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs