Citation Nr: 1044167 Decision Date: 11/23/10 Archive Date: 12/01/10 DOCKET NO. 07-06 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder, (claimed as asthma), to include as secondary to asbestos exposure. 2. Entitlement to service connection for a urinary tract/bladder disorder, claimed as interstitial cystitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from December 1959 to December 1963. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claims file was subsequently returned to the RO in Chicago, Illinois. The Veteran testified before the undersigned in April 2010. A transcript of the hearing is of record. At the Veteran's request, the undersigned held the record open for 60 days in order to give him an opportunity to submit additional evidence. The Veteran submitted additional evidence with waiver of RO consideration. This case was remanded by the Board in July 2010 and is now ready for further disposition. The Board notes that the issues of service connection for tinnitus and hearing loss which were previously on appeal have been granted and are no longer on appeal. FINDINGS OF FACT 1. The competent evidence of record does not support a finding that a relationship exists between a chronic respiratory disorder, (claimed as asthma), and his military service. 2. A urinary tract/bladder disorder, claimed as interstitial cystitis, existed prior to service and was not aggravated by active duty. CONCLUSIONS OF LAW 1. A chronic respiratory disorder, (claimed as asthma), was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). 2. A urinary tract/bladder disorder, claimed as interstitial cystitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1137, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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. 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. Regarding the issue of service connection for bilateral hearing loss, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Regarding the remaining issues, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in August 2004, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In compliance with its duty to assist, the RO associated the Veteran's service treatment records, private treatment records, and VA examinations in January 2005 (interstitial cystitis) and July 2010 (asthma and interstitial cystitis). As an initial matter, the Board finds that the January 2005 examination is adequate for the purpose of determining the preexistence of a urinary disorder. Additionally, the Board finds the July 2010 VA examination adequate for determining whether a nexus supports service connection of the disorders on appeal. In both cases, the examiners reviewed the Veteran's c-file, service treatment records, conducted an extensive personal interview with the Veteran regarding his medical history, and conducted a physical examination. There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant facts. Notably, the Board's July 2010 remand ordered the subsequent July 2010 VA examination. Here, the Board finds that the examiner substantially complied with the Board's requests for an opinion of direct service connection for a respiratory disorder as well as an opinion of whether a preexisting urinary disorder was aggravated by service. The Board acknowledges that the Veteran disagrees with the VA examiner's assessment regarding the urinary disorder but finds that a remand for further examination is not necessary for the above reasons. Additionally, the Veteran was afforded the opportunity to testify before the Board in April 2010. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2010) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned essentially elicited testimony necessary to determine the nature of the Veteran's disorders. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. After a careful review of the file, 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). 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. Hence, no further notice or assistance 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). Service Connection Under the relevant laws and regulations, 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 (West 2002). 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. 38 C.F.R. § 3.303(b) (2010). 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) (2010). Further, 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) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Respiratory Disorder The Board notes that the Veteran's available service treatment records are silent as to any complaints of, treatment for, or diagnosis related to his respiratory system. March 1960 and December 1963 chest X-rays revealed essentially negative findings. Further, his December 1963 separation examination revealed a normal clinical examination of his lungs and chest. Therefore, no chronic respiratory disorder was noted in service. Notably, the Veteran testified at his April 2010 BVA hearing that while stationed aboard a ship in service, the ship underwent a complete overhaul. He further testified that he was exposed to dust while his ship was in "repair mode" and that he experienced shortness of breath and chest congestion in service. See T pages 11, 12. In a May 2007 statement in support of his claim, he indicated that he was exposed to asbestos in the berthing and bathing areas for most of 1960. He additionally stated that in the crew berthing areas most of the piping and duct work was unwrapped and asbestos remained open to repair for weeks. Post-service treatment records are silent as to a respiratory disorder for many years following service. However, the Veteran testified at his April 2010 BVA hearing that he continuously suffered from respiratory problems since service. See T page 16. Although the Veteran acknowledged that he did not have documented continuous treatment for his asthma like symptoms, he testified that he self-medicated with over-the-counter medications. A March 2010 private treatment record notes a diagnosis of asthma. The Board considered the Veteran's statements regarding continuity of symptomatology since service and finds that his statements, while competent, are not credible. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In this case, the Veteran is competent to report symptoms such as shortness of breath and chest congestion because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Significantly, the Veteran's reported history of continued symptoms since active service is inconsistent with the other evidence of record. Specifically, he testified at one point in his April 2010 hearing before the Board that he experienced symptoms "on and off" following service and later in the hearing, stated that he had had symptoms at the same level since service. T. 13, 16. Further, he never sought medical treatment for his symptoms even though he sought treatment on numerous occasions for his other disorders. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of a veteran). Additionally, in this case, the Board also emphasizes the multi- year gap between discharge from active duty service (1963) and initial reported symptoms and diagnosis in 2010, nearly 40 years after service separation, despite the fact that he sought treatment for other medical complaints. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). Coupled with his personal testimony, which the undersigned found to be forced and contrived, the Board assigns no probative value to the Veteran's purported continuity of symptomatology since service. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Next, the Board has also considered whether a medical nexus exists between the Veteran's current diagnosis of asthma and his in-service exposure to asbestos. The Board has accepted, as true, the Veteran's contentions that he was involved in general repair work during the beginning of his service. Given the nature of these conceded duties aboard his ship, the VA finds that he was at least minimally exposed to asbestos during his active duty service. VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21, provides guidance in adjudicating asbestos-related claims. The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. M21-1, part VI, para. 7.21(b)(1) and (2). It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). The Board has considered the Veteran's private treatment records as well as VA outpatient treatment records but the records do not attribute any current respiratory disability to exposure to asbestos in service. Additionally, the Veteran underwent a VA examination regarding his asbestos exposure in July 2010. The VA examiner opined that the Veteran's asthma was not caused by or related to exposure to asbestos in service. The VA examiner's rationale was that "there is no known association between asbestos exposure and asthma." She further opined regarding whether asthma was related to service generally that "his service records were silent on any respiratory condition and thus it is my opinion that his asthma was not first manifest or causally related to his time in service." The Board has considered the Veteran's statements that his asthma is related to service. The Federal Circuit recently held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his asthma. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Because asthma is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his asthma are found to lack competency. Based on the foregoing, the Veteran's claim for service connection of asthma is denied. Urinary Tract/Bladder Disorder Where a veteran served during a period of war or during peacetime service after December 31, 1946, he or she is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). A preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2010). Clear and un-mistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id. However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). The U.S. Court of Appeals for Veterans Claims has held that "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For the following reasons, the Board finds clear and unmistakable evidence of a preexisting disorder in the present case and that it was not aggravated by service. First, the Board acknowledges that the Veteran's service entrance examination did not note any preexisting urinary disorder. However, he later reported, at the January 2005 and July 2010 VA examinations as well as in his sworn testimony before the Board in April 2010 that his first incident of urinary symptoms occurred in high school when he had been drinking beer with his friends and experienced significant urinary retention and abdominal pain. He reported that at that time, he went to the local emergency room and required catheterization to relieve his urinary retention. The Board places a high probative value on VA examinations in January 2005 and July 2010 in which the VA examiners, upon consideration of the Veteran's statements of medical history and his current symptoms, coupled with in-service treatment for urinary problems, determined that the Veteran had symptoms of interstitial cystitis prior to his enrollment in the military. Regarding the existence of a disorder prior to service, the January 2005 VA examiner opined "I do believe that the Veteran had symptoms of his interstitial cystitis prior to enrollment in the military." The basis for the opinion was "that his first symptoms of urinary retention occurred while he was still in high school. The Veteran's symptoms have certainly progressed over the years and now cause him significant disability." The Board acknowledges that a mere self-report of a preexisting condition is not always an adequate basis for rebutting the presumption of soundness upon service entrance. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a Veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A. § 1111). However, there is no strict standard that a self-report without contemporaneous clinical evidence can never rebut the presumption of soundness. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) (noting that in cases in which a later medical opinion is based on statements made by the veteran about the preservice history of his condition, contemporaneous clinical evidence and recorded history may not be necessary). Here, the Veteran has provided competent evidence of urinary symptomatology prior to service. Such competent evidence has been confirmed by two medical professionals as symptoms consistent with the Veteran's current urinary disorder. Moreover, the Veteran indicated some family history of the same disorder. Specifically, he reported to the January 2005 VA examiner that he thought his cousin also had the same urinary disorder. The Board has also considered the lay statements of the Veteran's family members that he was of sound body when he entered service. In this case, the Veteran's family members are competent to report their observations as they come to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, they are competent to report that they did not observe any of the Veteran's urinary symptoms; however, they are not competent to report the Veteran's actual symptoms or lack thereof. As such, the Board affords the statements no probative value. Similarly, the Board places no probative value on the Veteran's own lay statements that he was of sound body prior to service made in May 2007, after the denial of his initial claim. Having weighed the Veteran's statements against the competent medical evidence, the Board finds that a urinary disorder preexisted service. Next, the Board will consider whether the Veteran's disorder permanently increased during his active duty service. Service treatment records reflect that the Veteran was hospitalized for urinary retention issues in June 1960. A few weeks later, the Veteran was reevaluated and found to be asymptomatic. In April 1963, the Veteran reported to sick bay with complaints of pain in his groin, left testicle, radiating down his right leg. He was diagnosed with chronic prostatitis. In June 1963, the Veteran was diagnosed with "lower urinary tract symptoms, pyuria." A December 1963 separation examination noted a normal clinical evaluation of his genitourinary system. Next, the Board places significant probative value on the July 2010 VA examiner's findings that although the Veteran's interstitial cystitis worsened during service, it was due to the natural progression of the disease and not caused by service or exposure to asbestos during service. The basis for the July 2010 VA examiner's opinion was that in medical literature, there is no association of interstitial cystitis and any contaminants/pollutants (such as chlorinated water, chemicals, or asbestos). The Board has also considered the Veteran's statements that his current disorder is due to exposure to chlorinated water, asbestos, and chemicals in service. As previously stated, the Board acknowledges that the Veteran is competent to report symptoms such as increased urination and bladder pain because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his interstitial cystitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Because interstitial cystitis is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his interstitial cystitis are found to lack competency. The Board has also considered the internet article submitted by the Veteran regarding interstitial cystitis. The Board finds the article unpersuasive as it does not assert that contaminants/pollutants (such as chlorinated water, chemicals, or asbestos) are shown to cause or aggravate a urinary disorder. After weighing the recent statements of the Veteran against the remaining evidence of record in this case, the Board finds that the preexisting bladder disorder was not aggravated in service. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not for application. As the Board finds that the evidence of record indicates that the Veteran's pre-existing urinary disorder worsened due to the natural progression of the disease. As such, his claim for service connection is denied. ORDER Service connection for a chronic respiratory disorder, (claimed as asthma), to include as secondary to asbestos exposure, is denied. Service connection for a urinary tract/bladder disorder, claimed as interstitial cystitis, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs