Citation Nr: 1009217 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 07-37 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hypertension, to include secondary to service-connected type II diabetes mellitus. 4. Entitlement to service connection for an eye disorder, including secondary to service-connected type II diabetes mellitus. 5. Entitlement to service connection for a lung disorder, including due to asbestos exposure in service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The Veteran had active military service from August 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for type II diabetes mellitus, denied service connection for bilateral hearing loss; denied service connection for tinnitus; denied service connection for hypertension, to include secondary to service-connected type II diabetes mellitus; denied service connection for an eye disorder, including secondary to service-connected type II diabetes mellitus; and denied service connection for a lung disorder, including due to asbestos exposure in service. In a February 2009 rating decision, the RO granted service connection for type II diabetes mellitus and assigned a 20 percent rating. This is considered a full grant of the benefit sought on appeal, and in a statement received in March 2009, the Veteran stated that he was satisfied with the decision. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO in April 2009. He submitted additional evidence in conjunction with his hearing appearance with a waiver of RO review in accordance with 38 C.F.R. § 20.1304 (2009). Additionally, the record was left open for a period of 60 days from the date of the hearing in order for him to submit medical evidence in support of his claims. An extension of that period of time was requested and granted in June 2009, and the deadline for submitting evidence was September 20, 2009. Additional evidence was received and has been associated with the record. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and an eye disorder 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. FINDINGS OF FACT 1. Hypertension was not manifest in service or within one year of discharge; and the competent medical evidence does not demonstrate that hypertension is related to his military service, including exposure to toxins or to a service- connected disability. 2. The competent medical evidence of record does not show that the Veteran currently has a chronic lung disability, including one that may be attributed to asbestos exposure. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by military service, may not be presumed to have been so incurred or aggravated, and is not causally related to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), 3.310 (2009). 2. A chronic lung was not incurred in or aggravated by military service, including as a result of exposure to asbestos. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In an April 2007 letter, prior to the rating on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claims, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of or submit any further medical evidence relevant to the claim. He was also specifically advised of how disability ratings and effective dates are assigned. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, post service VA treatment records, Social Security Administration records, the Veteran's statements, and his and his spouse's personal hearing testimony. The Veteran also provided a waiver at his hearing. After the April 2009 hearing, the record was left open for a period of more than 120 days for the Veteran and his representative to submit additional evidence in support of the claims. Additional evidence was received in May and September 2009. In a September 2009 statement, the Veteran remarked that he wanted VA to obtain any other medical documents from VA Portland that might assist in his claim. However, he did not denote any specific documents or dates of treatment from this facility that should be obtained. Moreover, a review of the file reveals that treatment reports from this facility dated from March 2003 to August 2009 are included in the record. Therefore, the Board finds that the record is complete and further remand would result in needless delay, and is thus unwarranted. See Counts v. Brown, 6 Vet. App. 473, 478-9 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim). The Board observes that the Veteran was not afforded VA examinations in conjunction with the adjudication of his claims for service connection for hypertension and a lung disorder. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. However, the Board finds that a medical examination(s) as to these claims is unnecessary in this case, because there is no objective and competent evidence of any diagnosis of a chronic lung disability and/or evidence that the hypertension (which predated the diabetes mellitus) is related to his active military service or related or aggravated by a service-connected disability, including the diabetes mellitus. Consequently, the Board finds that the evidence of record is sufficient to decide these claims without conducting VA examinations or obtaining medical opinions. Hence, under such circumstances, an examination is not required. The Board also observes that the facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no competent medical evidence of current diagnosis of a lung disorder, or showing that the service-connected diabetes mellitus aggravates the Veteran's hypertension. Additionally, although the Veteran has asserted that his hypertension may be related to his exposure to chemical toxins in service, the service records do not document such exposure and he has not proffered any medical evidence to support his assertions. Hence, the Board finds that the record is sufficient upon which to make a decision on these claims. As discussed, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Thus, the record demonstrates that the Veteran had knowledge of what was needed to substantiate the claim, which cured any defect in the notice provided. Any defect in the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. As such, there is no indication that there is any prejudice to the Veteran in considering the matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). The regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as hypertension, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be established for disability which is proximately due to or the result of a service- connected disability. Further, a disability which is aggravated by a service-connected disability may be service- connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). However, 38 C.F.R. § 3.310 provides that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hypertension The Veteran does not assert, and the evidence does not show, that his hypertension was initially manifest during his period of active duty or within one year of his discharge from military service. His service treatment records do not show any treatment for high blood pressure. Upon separation examination in September 1966, his blood pressure was reported to be 130/80. Hypertension was not diagnosed. He asserts that his currently diagnosed hypertension was due to exposure to chemicals while serving aboard a ship or, in the alternative, he argues that the disability is aggravated by his service-connected diabetes mellitus. The current medical records clearly show that the Veteran has been diagnosed with hypertension; however, these records are dated more than 35 years after the Veteran's separation from service. Moreover, the Veteran has not submitted any medical evidence positing a relationship between his hypertension and his military service, including his exposure to chemicals. In the absence of clinical findings of the disease during a period of service, or competent evidence relating the condition to service, the Board concludes that service connection on a direct or presumptive basis must be denied. In this regard, the Board observes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). With regard to the issue of whether the Veteran's hypertension is aggravated by his service-connected type II diabetes mellitus, the Board observes that the medical evidence shows that the Veteran's hypertension had its onset prior to his type II diabetes mellitus. This fact was also conceded by the Veteran and his representative at the April 2009 hearing (see Transcript page 14). The medical records indicate that the Veteran was initially diagnosed with diabetes mellitus in 2006 and that he was initially treated for hypertension prior to 2002. Additionally, he was diagnosed with coronary artery disease and underwent a heart catheterization in March 1997 and stent placement in February 2002. Consequently, it may not be concluded that the type II diabetes mellitus caused his hypertension. Moreover, the medical records do not establish that the Veteran's type II diabetes mellitus aggravates his hypertension. In fact, an August 2007 VA treatment note indicated that the Veteran's blood pressure was typically adequately controlled. There are no notations indicating that the Veteran's diabetes mellitus aggravated his hypertension or otherwise made it difficult to treat the disease. Consequently, in the absence of any medical evidence relating that the hypertension was aggravated by the type II diabetes mellitus, the Board finds that service connection may not be granted on a secondary basis. See 38 C.F.R. § 3.310. Consequently, in light of the evidence of record, the Board finds that service connection for hypertension, including secondary to type II diabetes mellitus, must be denied. Lung Disorder The Veteran asserts that he has a chronic lung disability due to asbestos exposure in service. At his hearing in April 2009, he testified that he served aboard the USS Kawishiwi and he believed that he had a lung condition related to his asbestos exposure, as well as the exposure to other fuels and toxins on the ship. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The record indicates that the Veteran did serve on a US Naval Ship - the USS Kawishiwi. Nevertheless, despite the guidelines pertaining to the development of an asbestos- related claim, the Board notes that the current medical evidence fails to show that the Veteran has been diagnosed with any chronic lung disability, including one that is typically associated with asbestos exposure. In fact, a September 2006 VA medical record notes that the Veteran's past medical history is negative for lung disease. His Social Security disability records also fail to show a diagnosis of a chronic lung disorder. A May 2006 private medical record pertaining to treatment for a shoulder injury noted that a clinical evaluation was negative for any respiratory or pulmonary symptoms. In the absence of any currently diagnosed disability that can be causally linked to service, the claim of service connection for a chronic lung disability, including due to exposure to asbestos, must be denied.. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (service connection may not be granted unless a current disability exists). In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds that the Veteran (and his spouse) are competent to report that he has experienced shortness of breath. However, they are not competent to provide an opinion requiring medical knowledge, such as rendering a diagnosis of a chronic lung disability or providing an opinion regarding medical causation for such disability. See Espiritu, supra. Additionally, although he is competent to report his on-ship duties, he is not competent to diagnose himself with a lung disability as a result to possible toxin exposure. Moreover, the competent evidence of record is against his claim because it does not document that he has any type of chronic lung disability. For these reasons, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include secondary to service-connected type II diabetes mellitus, is denied. Service connection for a lung disorder, including due to asbestos exposure in service, is denied. REMAND Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when 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. The Veteran has asserted that he has bilateral hearing loss and tinnitus as a result of noise exposure during his military service. The current medical evidence of record is unclear as to whether the Veteran currently has bilateral ear hearing loss disability by VA standards. The private medical report submitted by the Veteran in May 2009 noted complaints of bilateral tinnitus and included a graphical chart of audiometric findings. However, the Board cannot interpret graphical representations of audiometric data. See 38 C.F.R. § 3.385 (2009) (for VA purposes, hearing loss is determined in the frequencies 500, 1000, 2000, 3000, or 4000 Hertz); see also Kelly v. Brown, 7 Vet. App. 471, 474 (1995) and Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, the private audiogram report is invalid and cannot be used to adjudicate the claim. Consequently, the Board finds that a VA audiological examination must be scheduled. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2009) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). With regard to the claim for service connection for an eye disorder, the Board observes that when determining whether a disability or disease was incurred in service, or preexisted service, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2009). In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence (1) that a veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. The record indicates that upon enlistment examination in August 1962, no preexisting disability of the eye was noted. The Veteran's distant vision was noted to be 30/20 bilaterally and his near vision was 20/20 in the right eye and 20/25 in the left eye. Hence, the presumption of soundness attaches. Service treatment records also show that the Veteran was seen in February 1963 for treatment of his left eye when the tip of a match flew into it. It was noted that he developed probable bacterial conjunctivitis. Upon separation examination in September 1966, no chronic eye disability was noted. However, current medical records indicate that the Veteran sustained a significant injury to his left eye when he was struck in the eye with a baseball at age 11. The records also show that the Veteran has a chorioretinal scar and an enlarged blind spot nasally. Since the presumption of soundness has attached, it must be shown by clear and unmistakable evidence (1) that a veteran's disability existed prior to service, and (2) that the pre- existing disability was not aggravated during service. Consequently, the Board finds that an examination and opinion are necessary to address these questions. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the existence and etiology of any current bilateral hearing loss and tinnitus. The examiner should examine the Veteran, review the Veteran's claims folder and render an opinion as to (1) whether bilateral hearing loss as defined in VA regulations currently exists; (2) whether the Veteran has constant, bilateral tinnitus; and (3) whether there is any relationship between any currently identified bilateral hearing loss and/or tinnitus and the Veteran's military service. A copy of the examination report should be associated with the Veteran's VA claims folder. 2. Schedule the Veteran for a VA ophthalmology examination. The examiner should examine the Veteran, review the Veteran's claims folder - in particular the service treatment records - and render an opinion as to (1) whether the Veteran's currently diagnosed chorioretinal scar and enlarged blind spot preexisted his military service; and (2) whether such disability was aggravated beyond the normal progression of the disease during his active military service, including during the February 1963 incident reported in his service treatment records when a match tip flew into his eye. The examiner should specifically cite to the evidence or medical findings relied upon to support the opinions rendered and fully explain the rationale for those opinions. A copy of the examination report should be associated with the Veteran's VA claims folder. 3. After undertaking any additional development deemed by it to be appropriate, readjudicate the Veteran's claims of entitlement to service connection for bilateral hearing loss, tinnitus, and an eye disorder, including secondary to service-connected diabetes mellitus. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs