Citation Nr: 0947992	
Decision Date: 12/18/09    Archive Date: 12/31/09

DOCKET NO.  09-36 447	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for residuals of 
stroke, to include paralysis of the left shoulder, arm and 
hand.

2.  Entitlement to a disability rating in excess of 40 
percent for a left shoulder disability, to include a frozen 
(minor) shoulder, with chronic dislocations, post-operative.  

3.  Entitlement to a total disability rating based on 
individual unemployability (TDIU) due to service-connected 
disabilities.


ATTORNEY FOR THE BOARD

A. Lindio, Associate Counsel




INTRODUCTION

The Veteran had active duty service from July 1945 to 
September 1946 with the Navy and from March 1951 to January 
1952 with the Air Force.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from an August 2008 rating decision from 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida.  

Please note this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2006).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).

The issues of entitlement to a disability rating in excess of 
40 percent for the left shoulder and TDIU are addressed in 
the REMAND portion of the decision below and are REMANDED to 
the RO via the Appeals Management Center (AMC), in 
Washington, DC.


FINDING OF FACT

The evidence of record does not show that the Veteran's 
residuals of paralysis are related to his active military 
service.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for 
residuals of a stroke have not been met.  38 U.S.C.A. §§ 
1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.304, 3.310 (2009).




[Continued on the next page]  
REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist
 
As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), 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. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  

Proper notice from VA must inform the claimant 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 claimant is expected to 
provide, in accordance with 38 C.F.R. § 3.159(b)(1).  
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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 of the VCAA 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.  

The U.S. Court of Appeals for the Federal Circuit previously 
held that any errors in notice required under the VCAA should 
be presumed to be prejudicial to the claimant unless VA shows 
that the error did not affect the essential fairness of the 
adjudication.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. 
Cir. 2007).  Under Sanders, VA bore the burden of proving 
that such an error did not cause harm.  Id.  
 However, in the recent case Shinseki v. Sanders, 129 S.Ct. 
1696 (2009), the U.S. Supreme Court held that the Federal 
Circuit's blanket presumption of prejudicial error in all 
cases imposed an unreasonable evidentiary burden upon VA. 
 Rather, in Shinseki v. Sanders, the Supreme Court suggested 
that determinations concerning prejudicial error and harmless 
error should be made on a case-by-case basis.  Id.  As such, 
in conformance with the precedents set forth above, on 
appellate review the Board must consider, on a case-by-case 
basis, whether any potential VCAA notice errors are 
prejudicial to the claimant. 

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the Veteran in March 2008 that fully addressed 
all of the 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.  The 
letter informed him that his service connection claim must be 
supported by evidence indicating a current disability, 
evidence that the injury or disease was incurred or 
aggravated during service, and medical evidence of a nexus 
between the current disability and the in-service injury or 
disease.  He was also informed that VA would seek to provide 
federal records.   Finally, he was informed that it was his 
responsibility to support his claim with appropriate 
evidence, though VA would help him obtain records from any 
non-federal sources. 

With respect to the Dingess requirements, the March 2005 
letter from the RO also provided the Veteran with notice of 
what type of information and evidence was needed to establish 
a disability rating, as well as notice of the type of 
evidence necessary to establish an effective date.  With that 
letter, the RO effectively satisfied the remaining notice 
requirements with respect to the issue on appeal.  

Under these circumstances, the Board finds that the 
notification requirements of the VCAA 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 and complied with the 
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

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.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the Veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  

The RO has obtained Social Security Administration (SSA) 
records.  The Veteran submitted statements.  There is no duty 
on the part of VA to provide a medical examination, because 
as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the 
Veteran has been advised of the need to submit competent 
medical evidence indicating that he has the disorders in 
question, and further substantiating evidence suggestive of a 
linkage between his active service and the current disorder, 
if shown. The Veteran has not done so, and no evidence thus 
supportive has otherwise been obtained. Here, as in Wells, 
the record in its whole, after due notification, advisement, 
and assistance to the Veteran under the VCAA, does not 
contain competent medical evidence to suggest that the 
disorder is related to service.  Indeed, the Board notes that 
obtaining a VA examination is unnecessary as there is 
otherwise sufficient medical evidence of record to make a 
decision.  38 U.S.C.A. § 5103A (d). 

Significantly, neither the Veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  The 
Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the Veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  Hence, no further notice or assistance 
to the Veteran is required to fulfill VA's duty to assist 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).

Applicable Law 
 
Under applicable law, service connection is granted if the 
evidence establishes that coincident with his service, the 
veteran incurred a disease or injury, or had a preexisting 
injury aggravated, in the line of duty of his active service.  
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection 
may also be granted for certain chronic diseases, when such 
disease is manifested to a compensable degree within one year 
of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 
38 C.F.R. §§ 3.307, 3.309.  That an injury or event occurred 
in service alone is not enough.  There must be chronic 
disability resulting from that injury or event.  If there is 
no showing of a resulting chronic condition during service, 
then a showing of continuity of symptomatology after service 
is required to support a finding of chronicity.  38 C.F.R. 
§ 3.303(b).  Service connection can also be found for any 
disease diagnosed after discharge, if all the evidence 
establishes it was incurred in service.  38 C.F.R. 
§ 3.303(d).  

Service connection requires that the evidence establish: (1) 
medical evidence of a current disability, (2) medical 
evidence, or lay testimony in some cases, that the injury or 
disease was incurred or aggravated during service, and (3) 
medical evidence of a nexus between the current disability 
and the in-service injury or disease. Pond v. West, 12 Vet. 
App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).  

Merits of the Claim
 
As indicated in his August 2009 VA Form 9, the Veteran 
essentially argues that his stroke was caused by his service, 
specifically, exposure to either lead paint or asbestos while 
serving with the Navy.

There is no specific statutory or regulatory guidance with 
regard to claims for service connection for asbestosis or 
other 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 (October 3, 
1997) (hereinafter "M21-1").  Also, an opinion by VA's Office 
of General Counsel discussed the development of asbestos 
claims. VAOPGCPREC 4-00 (April 13, 2000).

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.

The Board notes that the aforementioned provisions of M21-1 
have been 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 an asbestos related disorder 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.

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.

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 Board notes that the Veteran did serve in the Navy for 
approximately one year, during World War II.  However, he 
served as a seaman and the evidence does not show that he 
engaged in any of the occupations with a high risk of 
asbestos exposure.  He also has not demonstrated how he was 
exposed to asbestos during service, other than indicating 
that he served on a ship.  Asbestos exposure is not conceded.  
Additionally, the Veteran's claimed residuals of stroke are 
not listed as one of the previously discussed disorders 
acknowledged by VA to be due to the inhalation of asbestos 
fibers and/or particles.  These disorders generally include 
respiratory disorders, such as asbestosis, and certain 
cancers.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, 
Para. 9a-f. Furthermore, no medical evidence of record 
indicates that any medical professional has found the Veteran 
to have an asbestos-related disorder; no medical professional 
has found the Veteran's stroke to be related to asbestos-
related.  The record thus does not indicate that the 
Veteran's claimed stroke residuals are related to his claimed 
in-service asbestos exposure.

The record similarly does not support the Veteran's 
contention that he developed his stroke residuals due to any 
other part of his service.  VA medical records generally 
indicate that the Veteran suffered two strokes, over 50 years 
following his discharge from his second period of service, as 
reported in his July 2008 VA examination.  Although VA 
medical records generally indicate that the Veteran was 
treated for a cerebral vascular accident (CVA) or stroke, 
starting in 2002, no medical opinions are of record as to the 
etiology of the CVA.  Private medical records, including the 
Veteran's SSA records, are also of record.  However, they 
also do not provide any medical opinions as to the etiology 
of his stroke.  No medical opinions link his stroke to 
service, including to his claimed lead paint exposure.

The only evidence of record supporting the Veteran's claim 
that he developed his CVA due to service is his own 
statements.  Although he can provide testimony as to his own 
experiences and observations, the factual question of if his 
disorder can be attributed to his in-service experiences and 
injuries is a medical question, requiring a medical expert.  
The Veteran is not competent to render such an opinion.  
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).  He does 
not have the requisite special medical knowledge necessary 
for such opinion evidence.  "Competent medical evidence" is 
evidence that is provided by a person qualified through 
education, training, or experience to offer medical 
diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a).

No medical opinions are of record addressing the question of 
the etiology of the Veteran's CVA.  As noted above, the 
Veteran was advised of the need to submit medical evidence 
demonstrating both a current disorder, as well as medical 
evidence demonstrating a nexus between the claimed current 
disorders and service by way of the VCAA letter provided to 
him, but failed to do so.  A claimant has the responsibility 
to present and support a claim for benefits under laws 
administered by the VA, 38 U.S.C.A. § 5107(a).  

As the preponderance of the evidence is against the claim, 
the benefit of the doubt rule does not apply.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claim for 
service connection for residuals of a stroke, to include 
paralysis of the left shoulder, arm and hand, is denied.


ORDER

Service connection for residuals of stroke, to include 
paralysis of the left shoulder, arm and hand, is denied.


REMAND

The August 2008 rating decision included a denial of the 
Veteran's claim for a disability rating in excess of 40 
percent for a left shoulder disability.  The Veteran filed a 
Notice of Disagreement to all the decisions of the August 
2008 rating decision in September 2008.  To date, the Veteran 
has not been issued a Statement of the Case (SOC) for the 
issue of his increased rating claim, and under the 
circumstances the Board has no discretion and must remand 
this matter for issuance of an SOC.  See Manlicon v. West, 12 
Vet. App. 238 (1999); Fenderson v. West, 12 Vet. App. 119, 
131-132 (1999).

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), 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. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  
Proper VCAA notice was not provided to the Veteran in regards 
to his claim for an increased rating for his left shoulder 
claim.  Notice compliant with VCAA standards must thus be 
provided.  

Additionally, the left shoulder disability rating bears a 
direct relationship on whether the Veteran is unemployable 
due to his service-connected disabilities, which implicates 
his TDIU claim.  The appropriate remedy where a pending claim 
is inextricably intertwined with a claim currently on appeal 
is to remand the claim on appeal pending the adjudication of 
the inextricably intertwined claim.  Harris v. Derwinski, 1 
Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's 
docket pursuant to 38 C.F.R. § 20.900(c) (2006).  Expedited 
handling is requested.)

1. A Statement of the Case should be 
issued to the Veteran concerning the 
claim of increased rating for a left 
shoulder disability.  The Veteran 
should be advised of the necessity of 
filing a timely substantive appeal if 
he wants the Board to consider this 
issue.

		2.  When the development requested has 
been completed, the case should again 
be reviewed by the RO/AMC on the basis 
of the additional evidence.  If the 
benefit sought is not granted, the 
Veteran should be furnished a 
Supplemental Statement of the Case, 
which would include consideration of 
the TDIU claim, and be afforded a 
reasonable opportunity to respond 
before the record is returned 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. 2009).


______________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs