Citation Nr: 1026928 Decision Date: 07/19/10 Archive Date: 07/28/10 DOCKET NO. 07-20 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for vision loss. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for thrombocytopenic purpura (TTP), also claimed as blood clots, to include as a result of asbestos exposure. 4. Entitlement to service connection for spots on lungs, to include as result of asbestos exposure, and as secondary to TTP. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the claims. In November 2009, the Board remanded the case for additional evidentiary development to include obtaining outstanding treatment records and according the Veteran an examination(s) which addressed the etiology of the claimed disabilities. Additional treatment records were obtained, and the Veteran underwent additional VA examinations in February 2010. With the exception of the hypertension claim, the Board finds that these examinations are adequate for resolution of this case. Therefore, except for the hypertension claim, the Board finds that the remand directives have been completed. As such, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is still required for resolution of the hypertension claim. Accordingly, this claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the issues adjudicated by this decision have been completed. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's claimed vision loss, TTP, and spots on the lungs were incurred in or otherwise the result of active service to include in-service asbestos exposure. CONCLUSIONS OF LAW 1. Vision loss was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 2. TTP was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 3. Spots on the lungs were not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in November 2005, January 2006, and March 2006, all of which were clearly sent prior to the April 2006 rating decision that is the subject of this appeal. He was also sent additional notification via January 2010 letter followed by readjudication of the appeal by an April 2010 Supplemental Statement of the Case (SSOC) which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the March 2006 letter included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied with the exception of the hypertension claim. The Veteran's service treatment and personnel records are on file, as are various post- service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, he was accorded VA medical examinations regarding this case in February 2010 which included opinions that addressed the etiology of his vision loss, TTP, and lung disorder. As these opinions were based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the February 2010 VA examiners, not has any prejudice otherwise been indentified therein. Accordingly, the Board finds that these examinations are adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by 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). 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). 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 evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran essentially contends that his claimed disabilities either originated during service and/or are due to in-service asbestos exposure. Specifically, he attributes his blood clots, TTP diagnosis, and lung spots to in-service asbestos exposure while serving aboard U.S. Navy ships in the boiler room. For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos- related diseases. This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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. VAOPGCPREC 4-00. 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). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The Board also notes that hypertension means persistently high arterial blood pressure, and by some authorities, the threshold for high blood pressure is a reading of 140/90. See Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101. As such, specific medical testing is required to confirm the presence of hypertension, and it is not the type of condition which is subject to lay observation without this testing. Analysis Initially, the Board observes that it previously determined in the November 2009 remand that there is medical evidence which establishes the Veteran receives treatment for the claimed conditions, to include repeated diagnostic imaging to monitor the existence of any lung abnormality. Further, the Veteran's service treatment records also show vision complaints requiring the provision of eye glasses, diastolic blood pressure of 99 at separation, and a questionable in-service chest X-ray. His service personnel records confirm that, prior to being a Navy recruiter, his military occupation was an automatic combustion console operator with boiler water training. In addition, his service treatment records confirm his participation in an Asbestos Medical Surveillance Program (AMSP) which targeted personnel with significant asbestos exposure risk. In view of the foregoing, the Board remanded this case in November 2009 for the Veteran to be accorded appropriate VA examinations to determine the nature and etiology of his identified hypertension, blood condition, and vision impairment, as well as any lung spots diagnosed during the appellate period. The February 2010 VA eye examination diagnosed the Veteran's vision loss as myopia, and stated the Veteran had normal ocular exam for age. Further, the examiner stated that myopia was an inherited thing and was not related to any service-connected disability. In addition, the Board notes that as a general rule vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Such a condition is part of a life- long defect, and is normally a static condition which is incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). The other February 2010 VA examination diagnosed essential hypertension. Moreover, the examiner stated, in part, that from a general medical standpoint, he was unable to define any disabilities related to the hemic system, to hypertension, or to the respiratory system that would interfere with the Veteran's ability to perform his usual employment. The examiner also stated there was currently no evidence of ongoing TTP or hemolytic anemia or thrombocytopenia. The exact etiology of the chronic thrombocytopenia and anemia was not clear and would require speculation to list a specific diagnosis. Similarly, the examiner noted that pulmonary function tests showed normal FEV-1 of 83 percent; normal lung volumes with TLC of 89 percent; and the diffusion study was likewise normal at 82 percent. Further, there was no evidence of asbestosis on chest X-ray. Most importantly, the examiner stated that there was no evidence the TTP or clotting disorder related to minor abnormalities noted on CT scan of the chest. Simply put, the February 2010 VA examiner essentially opined that the Veteran's claimed TTP and spots on the lungs were not related to the confirmed in-service findings, nor in-service asbestos exposure. The Board acknowledges that, as detailed in the preceding paragraph, the examiner indicated there was no current TTP or lung disorder. However, the Board previously determined in the November 2009 remand that there was medical evidence establishes that the Veteran receives treatment for the claimed conditions, to include repeated diagnostic imaging to monitor the existence of any lung abnormality. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. Nevertheless, these claims must still be denied as the February 2010 VA examiner concluded that these disabilities were not related to the confirmed in-service findings, to include asbestos exposure. In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's claimed vision loss, TTP, and spots on the lungs were incurred in or otherwise the result of active service to include in-service asbestos exposure. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied. As an additional matter, the Board acknowledges that the Veteran also indicated his spots on the lungs were secondary to TTP. However, as service connection is not warranted for TTP, there is no basis to award secondary service connection as a result thereto under 38 C.F.R. § 3.310. Simply put, the law does not permit the establishment of service connection for a disability that is secondary to another nonservice-connected disability. ORDER Entitlement to service connection for vision loss is denied. Entitlement to service connection for TTP, also claimed as blood clots, to include as a result of asbestos exposure, is denied. Entitlement to service connection for spots on lungs, to include as result of asbestos exposure, and as secondary to TTP, is denied. REMAND As detailed above, the Board noted in the November 2009 remand that the Veteran had an elevated diastolic blood pressure reading of 99 at the time of his separation from service, and directed that the VA examination(s) to opine whether the claimed disabilities were incurred in or aggravated by military service, among other things. Here, while the February 2010 VA examiner indicated the Veteran's hypertension was not related to in- service asbestos exposure, it does not appear that the examiner indicated whether the hypertension was directly related to service to include the aforementioned elevated diastolic blood pressure reading. The Court has held that "a remand by ... the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by ... the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand." Stegall, 11 Vet. App. at 271. In view of the foregoing, the Board finds that the November 2009 remand directives have not been satisfied with respect to the hypertension claim. Accordingly, the Board must remand the case again to obtain clarification from the February 2010 VA examiner as to whether the Veteran's hypertension is causally related to service. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims folder should be made available to the examiner who conducted the February 2010 VA examination for review and clarification. The examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's current hypertension was incurred in or aggravated by his active military service, to include the elevated diastolic blood pressure reading of 99 noted at the time of separation from service. If the examiner who conducted the February 2010 VA examination is unavailable, the Veteran's claims folder should be made available to another appropriately qualified clinician for promulgation of the requested opinion. If a new examination is deemed necessary, one should be conducted. A complete rationale for any opinion expressed should be provided. 2. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in April 2010, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs