Citation Nr: 1007353 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-06 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a contusion of left forearm. 2. Entitlement to service connection for residuals of a chest injury. 3. Entitlement to service connection for a breathing disorder, to include as due to asbestos exposure and secondary to residuals of a chest injury. 4. Entitlement to service connection for a sleep disorder, to include as secondary to contusion of the left forearm and as secondary to residuals of a chest injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran provided testimony at an August 2007 hearing before the undersigned. A transcript of the proceeding is associated with the claims folder. The Board remanded the Veteran's appeal in April 2008 The Board is satisfied that there has been substantial compliance with the remand directives and it may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The competent medical evidence does not show a diagnosis of a left forearm disability. 2. The competent medical evidence does not show a diagnosis of a chest disability. 3. The competent medical evidence does not show a diagnosis of a breathing (pulmonary) disability. 4. Sleep apnea was not manifested during service and is not shown to be causally or etiologically related to service; the competent medical evidence shows that the Veteran's sleep apnea is due to obesity. CONCLUSIONS OF LAW 1. Service connection for a left forearm condition is not warranted. 38 U.S.C.A. §§ 1110, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 2. Service connection for a chest condition is not warranted. 38 U.S.C.A. §§ 1110, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 3. Service connection for a breathing (pulmonary) condition is not warranted. 38 U.S.C.A. §§ 1110, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 4. Sleep apnea was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as service treatment records, VA outpatient treatment records, VA examinations, and service personnel records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim, and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Complete notice was sent in January 2006, April 2006 and April 2008 and the claims were readjudicated in a December 2009 supplemental statement of the case. Mayfield, 444 F.3d at 1333. As for the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran, whereas VA has obtained service treatment records, afforded the Veteran VA examinations, provided the Veteran the opportunity to testify before the Board, and assisted the Veteran in obtaining evidence. The October 2009 VA respiratory examination was conducted by a physician, but there is no indication that the examiner was a pulmonary specialist as requested in the Board remand. The Board finds, however, that the examination was conducted by a health care professional who was qualified to conduct examinations and provide the opinion sought. In connection with the examination, the examiner reviewed the Veteran's claims folder and VA treatment records and provided a rationale for the opinion expressed. The Board finds the examination was adequate and there has been substantial compliance with the Board remand directives. Substantial compliance, not strict compliance, with the terms of a remand is required. D'Aries v. Peake, 22 Vet. App. 97 (2008). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service Connection Law and Regulations The Veteran contends that he sustained injuries to his left forearm and chest, as well as pulmonary and sleep disorders as a result of his service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. If a chronic disease is shown 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. However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, to prove secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). It is further noted that additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Discussion The Veteran's May 1966 physical induction examination is negative for complaints or a diagnosis of a left forearm, pulmonary disability, or a sleep. The induction exam contains a complaint for chest pressure or pain; however, the examiner indicated that the Veteran's chest was without disability. The Veteran's service treatment records (STRs) are negative for complaints or a diagnosis of a pulmonary disability or a sleep disability. A March 1969 STR notes a complaint of a contusion to the left forearm and chest; however, x-rays were negative for any findings. A July 1970 STR indicates that an x-ray of the Veteran's chest was found to be normal. The Veteran's July 1970 separation examination is negative for complaints or a diagnosis of a left forearm, chest, pulmonary disability, or sleep disability. During the August 2007 hearing before the Board, the Veteran testified that he has continued pain in his left forearm and chest since his in-service injury. The Veteran stated that he was injured in March 1969 when he stepped under an airplane, however, he cannot recall seeking treatment for his left forearm and chest since that time. Regarding his pulmonary condition, the Veteran testified that it is related to his service; specifically, the 11 month assignment of installing ventilation systems on aircraft carriers on a dry dock, where everything was insulated with asbestos. Regarding his sleep condition, the Veteran testified that he has experienced difficulty sleeping since service, due to sleeping below the flight deck. Left Forearm and Chest Post-service treatment records include an October 2009 VA examination which noted the Veteran's in-service March 1969 contusion to his left forearm and chest, however, the examiner found the Veteran's chest to be normal and his left forearm, confirmed by x-ray to be without physical findings of significance. VA outpatient treatment records demonstrate that the Veteran sought treatment for chest pain in September 1988. Aside from the aforementioned examination, there is no evidence of record documenting post-service treatment for the Veteran's left forearm. The Veteran has alleged that he has continuously experienced left forearm and chest pain symptoms since service. At separation from service, no pertinent defects or diagnoses were noted. The post-service medical records do not include any diagnosis of a left forearm or chest disability. The Board acknowledges the Veteran's contentions of left forearm and chest pain due to the aforementioned in-service incident. In this regard, the Board does not dispute the Veteran's left forearm or chest pain; as a layman he is competent to report the existence of symptoms ascertainable by the senses. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Pain alone, however, is not a disability for VA purposes. Absent a competent diagnosis of an underlying left forearm or chest disorder, service connection is not warranted for a left forearm or chest disorder. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Without a diagnosis of a current disability, the Veteran has failed to meet the critical first element of a service connection claim and as such, his claim must be denied. See Brammer v. Derwinski, 3 Vet App. 223 (1992). Pulmonary Condition Post-service treatment records include a VA outpatient record dated in December 2008 with a diagnosis of dyspnea, a February 2009 record in which the Veteran indicates his concern that he has not be given pulmonary function tests, a June 2009 report of a CT scan of the chest, a September 2009 VA split night sleep interpretation test that included pulmonary function tests, and an October 2009 VA examination. The June 2009 report of a CT scan of the Veteran's chest showed a stable to decreased 7 mm pleural-based noncalcified lung nodule within the anterior segment of the right upper lobe. There was stable prominence to the medial limb of the right adrenal gland. There was cholelithiasis with no evidence of cholecystitis. Upon interpretation of the this CT scan, the physician reported that these results indicate that the spot on the Veteran's lungs has not grown and it may have regressed. In connection with his current claim, the Veteran was afforded a VA examination in October 2009. At the time, the Veteran reported that he spent 11 months cleaning ship ventilation during service, where he was exposed to asbestos dust as the vents were insulated with asbestos. Following service, the Veteran drove a truck for Timex Company and a scale truck for Alcoa Company for approximately one year. Subsequently, the Veteran was a truck driver and then a bus driver until four months ago, when he retired due to medical disabilities. The Veteran claimed that he was exposed to asbestos during service, as well as possibly while he was working for Timex or Alcoa. On physical examination, the Veteran's chest was normal. There was no deformity of his left chest wall. There was no tenderness or palpable abnormality. His lungs were clear to auscultation and percussion. He had normal breath sounds, as well as regular cardiac rhythm. There were no murmurs, clicks, or gallops. Upon conclusion of the examination, the examiner reported that the Veteran has dyspnea, however, determined that the Veteran does not have a pulmonary disability. The examiner stated that, based on the Veteran's description of his activities in service, it is at least as likely as not that he has had some degree of asbestos exposure. Noting the Veteran's dyspnea, the examiner indicated that the Veteran has become markedly obese since discharge from service, which may be a factor. Regarding the finding of no pulmonary disability, the examiner referred to the pulmonary function tests (PFT) that the Veteran recently underwent during the September 2009 VA sleep test. Specifically, the examiner noted that the PFT's were normal except for the Veteran's forced expiratory flow maximum, which was 53% of predicted. The Veteran's other values were 100% of predicted from the standpoint of flow measurements. The examiner also noted that the aforementioned CT scan of the Veteran's chest performed in June 2009 does not show any pleural plaques or parenchymal change consistent with asbestosis. The small pleural base noncalcified lung nodule, which is being followed, which is in the anterior segment of the right upper lobe is unlikely to be asbestos-related and appears to be getting smaller with time. Thus, on the basis of these findings, it is less likely than not that the Veteran has any asbestos-related disability. The examiner further opined, that it is unlikely that the Veteran had any asbestos exposure in his post-military career when he drove for Timex or Alcoa. The Veteran has alleged that he has continuously experienced difficulty breathing since service, due to exposure to asbestos. At separation from service, no pertinent defects or diagnoses were noted. The Board notes that a December 2008 VA outpatient record provides a diagnosis of dyspnea, however, this diagnosis was made prior to the subsequent PFT's, CT scan of the Veteran's chest, and VA examination. While the October 2009 VA examiner found that it is at least as likely as not that the Veteran was exposed to some asbestos in service, he ultimately concluded that the Veteran does not have a pulmonary disability based upon his normal PFT's and CT scan of the chest. The Board does not dispute the Veteran's complaints of breathing difficulty; as a layman he is competent to report the existence of symptoms ascertainable by the senses. See Espiritu, 2 Vet. App. at 492. As a general matter, a claimant without a medical background is deemed competent to allege symptoms of a current claimed disorder. Jandreau. However, competent medical evidence clearly weighs against the presence of a current disability. The Veteran's lay statements are weighed against the other evidence of record, which includes the VA examiner's opinion that the Veteran does not have a pulmonary disability. Asbestos exposure itself is not a disability. Without a diagnosis of a current disability, the Veteran has failed to meet the critical first element of a service connection claim and as such, his claim must be denied. See Brammer, 3 Vet App. at 223. Sleep Apnea Regarding the Veteran's sleep condition, post-service treatment records include an October 2008 VA outpatient treatment record, a September 2009 VA split night interpretation test, an October 2009 VA examination, and a mid-October 2009 VA psychiatric examination. In an October 2008 VA outpatient treatment note, the Veteran indicated that he has not slept well in years. The October 2009 VA examiner reported that the Veteran has a long history of awaking frequently during the night, indicating that his wife notices that he snores and breaths heavily. The examiner further reported that the Veteran underwent a sleep study in September 2009 and was told that he needed a CPEP, however, the Veteran has yet to be contacted. The examiner diagnosed the Veteran with obstructive sleep apnea based on his history of the abnormal sleep study and compatible symptoms, indicating that it is more likely than not that the Veteran has obstructive sleep apnea. The examiner opined that it is unlikely that the Veteran's sleep apnea is related to asbestos exposure or other pulmonary problems. The examiner further opined that the Veteran's condition is more likely associated with his obesity. The examiner reported that sleep apnea is primarily a problem of relaxation of the throat musculature, allowing the tongue to fall back and block the upper airway, especially in the supine position with sleep; it is not a primarily a lung-related abnormality. Subsequently, the Veteran underwent a VA psychiatric examination. At the time, the Veteran reported that he was recently diagnosed with obstructive sleep apnea. The examiner confirmed the prior findings, diagnosing the Veteran with a breathing-related sleep disorder, opining that it is more likely than not that the Veteran's current sleep problems are attributable to his diagnosed breathing disorder. The Board notes the Veteran's diagnosis of obstructive sleep apnea. In this regard, to the extent that sleep apnea was indicated as a "breathing-related sleep disorder" in the October 2009 VA psychiatric examiner's report, the Board does not find there to be evidence of a pulmonary or lung disability, as the evidence described above indicates that there is no current disability. Thus, the "breathing- related sleep disorder" is apparently the sleep apnea itself as diagnosed in the October 2009 respiratory examination. While the Veteran has a current disability, the competent medical evidence does not show that it is related to service, to include asbestos exposure. Indeed, the October 2009 VA examination is the only medical evidence addressing the etiology of the Veteran's current diagnosis of sleep apnea, where the VA examiner expressly rejected a causal relationship between the Veteran's sleep disorder and his in- service exposure to asbestos or other pulmonary problems. Rather, the examiner found the Veteran's sleep apnea disability is related to his obesity, stating, that sleep apnea is primarily a problem of relaxation of the throat musculature, allowing the tongue to fall back and block the upper airway, especially in the supine position with sleep; it is not a primarily a lung-related abnormality. The Veteran claims that his sleep condition is related to his service. His recitation of symptoms is accepted as true. To the extent that the Veteran may be competent to report on his own observations regarding his sleep condition (see Jandreau, 492 F.3d at 1372), the Board finds his assertions are outweighed by the detailed opinion provided by the October 2009 VA examiner who discussed the Veteran's in-service and post-service history. Regarding the Veteran's claim of entitlement to service connection for sleep apnea, to include as secondary to left forearm contusion or secondary to residuals of a chest injury, the Board notes that the Veteran has a current diagnosis of sleep apnea, however, he is not service- connected for a left forearm contusion or residuals of a chest injury and therefore is not entitled to service connection on a secondary basis. See Wallin; 38 C.F.R. § 3.310(a). In light of the aforementioned, the Board concludes that service connection for left forearm condition, chest condition, pulmonary condition, and sleep apnea must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for left forearm condition is denied. Service connection for chest condition is denied. Service connection for breathing disorder, to include as secondary to asbestos exposure and as secondary to residuals of a chest injury, is denied. Service connection for sleep disorder, to include as secondary to contusion of the left forearm and as secondary to residuals of a chest injury, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs