Citation Nr: 1023780 Decision Date: 06/25/10 Archive Date: 07/01/10 DOCKET NO. 09-02 776 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and March 2009 rating decisions issued by the RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in February 2010. A transcript of the hearing is of record. The issue of entitlement to service connection for asbestosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The VA has fully informed the Veteran of the evidence necessary to substantiate his claim and the VA has made reasonable efforts to develop such evidence. 2. The Veteran was shown to have had a lumbar spine disability at the time of his enlistment for active military service. 3. The Veteran's pre-existing lumbar spine disability is not shown to have increased in severity beyond the natural progression during the period of active service. CONCLUSION OF LAW A pre-existing lumbar spine disability was not aggravated by active service. 38 U.S.C.A. §§ 1101, 1131, 1153, 5107, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the Veteran in correspondence from the RO dated in December 2007 and October 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims and identified his duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the December 2007 and October 2008 letters. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Laws and Regulations The law provides that service connection may be granted to a veteran for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case of a preexisting injury or disease, service connection may be granted where there is an increase in disability during service not due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To rebut the presumption of sound condition under 38 U.S.C. § 1111, the Department of Veterans Affairs (VA) must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C. § 1111 insofar as section 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. Section 3.304(b) is therefore invalid and should not be followed. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the preexisting condition increased in severity during service. . . Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that 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. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153. VAOPGCPREC 3-2003 (July 2003) The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2009). Factual Background and Analysis The Veteran essentially asserts that his pre-existing lumbar spine disability increased in severity during his period of service. In a September 1956 service treatment record (STR) documenting physical examination in conjunction with report for recruit training, a history of back injury in 1943 was noted. Notwithstanding, the Veteran was found qualified for service. A review of the STRs shows that the Veteran was seen with complaints of low back pain during his period of active service. In October 1958, he was seen for a sore back. He gave a history of driving 12 hours a day for the previous three days. The back was treated with heat therapy and aspirin. In a June 1959 service treatment record the Veteran reported that he was struck by a car in childhood, causing fracture to at least one, probably two, lumbar vertebrae. Since that initial injury he had intermittent pain in the lumbar area with straining. In this instance, he was lifting a rudder from the deck when he suddenly developed severe pain in the back. Objective examination showed scoliosis with convexity to the right, spasm of the strap muscles on the left and a prominence of the L-4 spinous process. X-rays showed an old fracture of L-4 with lateral deformity. The diagnosis was strain, lumbosacral. The Veteran was treated with bed rest and medication for the pain as needed, and returned to full duty two days later. In an August 1961 service treatment record, the Veteran complained of right lumbar back pain that radiated to the buttocks. He reported his past history of lumbar fracture. Objective examination showed no muscle wasting. There was slight paravertebral tenderness in the right lumbar region. The diagnosis was instability of lumbar spine, secondary to old injury. In the remaining three-plus years of service, the Veteran was treated for other unrelated ailments; however, he did not seek medical care for his back after August 1961. The December 1964 separation examination revealed no pertinent complaints or findings regarding the low back. Subsequent to service, in March 1985 treatment records from St. Michael Hospital, the Veteran complained of intense low back pain, right sided. He gave a history of L4-S1 fusion 18 years earlier. He noted that he was employed as a carpenter/millwright, drove 75 miles to-and-from work, and had recently because of cut-backs at work, been assigned a position as a laborer. He had two similar episodes of low back pain, most recently in November 1984. X-ray films showed a large fusion mass out posterolaterally L4 to the sacrum. The L-5 vertebra was almost completely obliterated as it had been incorporated in the fusion mass. The diagnosis was lumbar strain with marked paraspinous muscle spasm. There were no prominent nerve root radicular findings. He was treated with 7-10 days of bed rest and muscle relaxants. He was encouraged to start a Williams exercise program once spasm resolved. Received in December 2008, were pictures of the Veteran's lower back with a linear scar along the spine, the site of earlier low back surgery. At the same time, the Veteran indicated that records from Dr. H. (who performed back surgery in February 1968) were unavailable, as the physician was either retired or deceased. In a February 2009 VA spine examination, the examiner documented the Veteran's history of low back pain during his period of service. The examiner noted that the Veteran was diagnosed with lumbosacral strain and status post fracture which occurred before military service. The Veteran complained of chronic low back pain without radiation, ongoing since 1959. The pain was described as a dull pain in the low back. Following the examination, the examiner opined that the Veteran's back disorder was not caused by or secondary to his military service. In this regard, the examiner noted the Veteran's complaints of back pain in service but explained the pre-existing injury became worse after the Veteran's period of military service and continued to progress in disability due to age-related degenerative changes. Additionally, the examiner noted that the Veteran's extreme obesity, subsequent to service, accelerated the deterioration of the lumbar spine disability. Given its review of the record, the Board finds that service connection for the lumbar spine disability is not warranted in this case. To that end, in the February 2009 VA examination the examiner concluded the Veteran's back disability was not etiologically related to his period of service. In this regard, the examiner explained that the pre-existing injury increased in disability subsequent to the Veteran's period of service and continued to progress in disability due to age related degenerative changes and was exacerbated by the Veteran's extreme obesity. The Veteran has alleged that he never had any trouble with his back until he went into service. In this regard, at the time of his enlistment, a history of back injury in 1943 was recorded. Later in service, he related that as a child, he had been struck by an automobile, fracturing one or two vertebrae. The fracture was then confirmed on X-ray films. Thus, there is clear and unmistakable evidence of pre- existing low back defect which was identified at the time of service entrance, and the presumption that the Veteran was physically sound at entrance is rebutted. The next step is a requirement for VA to show that the preexisting defect was not aggravated; that is, not worsened beyond the natural progress of the disorder during service. The Board notes that while there are three isolated complaints of low back pain in service (October 1958, June 1959 and August 1961), there were no other pertinent complaints or findings, further suggesting that there was no aggravation of the lumbar spine disability in service. As stated earlier, in the remaining three-plus years of service, the Veteran was treated for other unrelated ailments; however, he did not seek medical care for his back after August 1961, and his separation physical examination noted the spine to be normal. Therefore at the time of his separation from service, no additional disability of the low back was identified, hence, no aggravation of the preexisting back disorder can be conceded. It was not until 1985, over 20 years after separation from service, that medical records document back complaints. While in 1985 the Veteran gave a history of spinal surgery 18 years earlier (February 1968 ), this event occurred over three years after separation from service, and the reason for the surgery (injury, accident, or degeneration) is unknown. In addition, the Veteran has not provided any objective evidence contradicting the findings and opinion of the examiner in the February 2009 VA examination report. The only other evidence of record supporting the Veteran's claim is various lay assertions submitted by and on his behalf. While lay assertions can be competent evidence concerning continuity of symptoms capable of lay observation, a veteran or other lay witness, without the requisite medical training or credentials, is not competent to render a diagnosis or a competent opinion as to medical causation. As the Veteran and his lay witnesses lack the medical expertise regarding lumbar spine disabilities, any such lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. at 494-95 (1992). A basis for awarding service connection for a lumbar spine disability has not been established. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, this appeal is denied. ORDER Service connection for lumbar spine disability is denied. REMAND The evidence of record is convoluted and confusing concerning the Veteran's claim for asbestosis. At the outset, the Board notes that the Veteran contends that his military occupation was ship fitter; the related civilian occupation was sheet metal worker. An October 2001 chest x-ray showed the cardiac silhouette and pulmonary vasculature were within normal limits. The previous interstitial infiltrate in the left base had resolved. Apices have mild symmetric pleural thickening which was chronic. The left upper lobe had an ill-defined faint area of nodularity laterally which probably represented scarring and was unchanged. The diagnosis was chronic lung disease without acute pathology. In a December 2002 private treatment record, R.C.T., M.D., concluded that the Veteran had asbestosis on the basis of occupational exposure both during his military occupational specialty as a ship fitter in the Navy, and post-service as a carpenter and millwright working in paper mills steel mills and constructing cement plants where he overhauled blast furnaces and coke ovens, removing asbestos firebricks by blasting and jack hammers, installing new firebrick, and using asbestos-containing adhesive mortar. He also tore out and replaced asbestos covered pipes, and overhauled equipment and turbines insulated with asbestos. He based his assessment of asbestosis on the intensity, duration and latency, chest radiographic findings of diffuse interstitial fibrosis, crepitant rales on physical examination and a decreased diffusion capacity by pulmonary function studies. An April 2003 preanesthetic evaluation noted a diagnosis of asbestosis without any explanation. A November 2003 inpatient assessment/screening form contained a notation of asbestosis in the history portion of the form. August 2007 private chest x-ray films revealed unchanged findings of COPD and pulmonary arterial hypertension. It was noted that there were no fibrotic changes suggestive of asbestosis. August and December 2007 VA treatment records contained, in pertinent part, an impression of asbestosis. The Veteran underwent a VA respiratory examination in April 2008. CT of the chest showed mild emphysematous changes and mild interstitial fibrosis which could be associated with asbestoses exposure. The diagnosis was chronic obstructive pulmonary disease under treatment. The examiner opined that it was not as likely as not that the Veteran's lung condition was secondary to his duties as a ship fitter. In this regard, the examiner noted that the Veteran had been given a diagnosis of asbestosis. However, the examiner noted that the Veteran did not have the typical changes that are associated with asbestosis on his CT scan. The examiner explained that the CT was the standard by which asbestosis was diagnosed. The examiner noted that previous records diagnosed asbestosis; however, the CT scan did not definitely conclude that the Veteran had the changes associated with asbestosis. The examiner concluded that the Veteran had asbestos exposure both in his military occupation and his civilian occupation; however, there was no definite evidence of asbestosis on the examination. The Veteran did have a history of heart disease and lung disease unrelated to asbestos exposure. A June 2008 private treatment record contained a notation of asbestosis. A subsequent June 2008 private treatment record diagnosed, in pertinent part, progressive dyspnea/questionable angina equivalent. Notwithstanding this contradictory evidence of a confirmed diagnosis of asbestosis, the Board notes that there are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The VA General Counsel has held that these M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Veterans Benefits Administration Manual M21-1R, Part IV, Subpart ii, Section C, Paragraph 9. It does not appear that the procedures outlined in The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 have been followed concerning development of a claim involving asbestos. Consequently, additional development must be undertaken before the claim is ready for appellate review. If indicated, the Veteran should be afforded a VA examination to determine the etiology of his reported lung symptoms. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009), the need for additional evidence regarding his claim. This letter should reflect all appropriate legal guidance. See e.g., Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The Veteran is requested to provide a list of his employers since his separation from service, complete with the addresses, dates of employment, his job title, and a list of all chemicals to which he was exposed during each period of employment. 3. The AMC/RO should review the claims file and ensure that all notification and development action outlined by The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 concerning asbestos are fully complied with and satisfied. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 4. Thereafter, the record should be reviewed and specific determinations provided as to whether the military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. 5. IF AND ONLY IF the AMC/RO determines that the Veteran had asbestos exposure, then the Veteran should be scheduled for a pulmonary examination at an appropriate VA medical facility. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, to specifically include CT scan, should be accomplished, and all clinical findings should be reported in detail. Based on a review of the claims folder, examination of the Veteran, and employing sound medical principles, the physician is requested to opine whether it is at least as likely as not (50 percent probability or greater) that any lung disorder had its onset in service or is otherwise etiologically related to the Veteran's period of service. A complete rationale must be given for all opinions and conclusions expressed. The physician is specifically requested to determine the relationship between any claimed lung disease and any documented asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The physician should also address the Veteran's history of smoking and heart disease and the impact of such on the claimed lung disorder. 6. If scheduled, the Veteran must be given adequate notice of the date and place of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 7. After completion of all indicated development, the Veteran's claims should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs